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63d Congress "I SENATE i Document 

1st Session J \ No. 43 



INSURRECTION 
AND MARTIAL LAW 



OPINIONS 




SUPREME COURT OF APPEALS OF WEST 
VIRGINIA IN THE CASES OF STATE EX REL. 
MAYS v. BROWN, WARDEN OF STATE PENI- 
TENTIARY, STATE EX REL. NANCE r. SAME 

AND 

IN RE MARY JONES. CHARLES H. BOS- 
WELL, CHARLES BATLEY, AND 
PAUL J. PAULSON 




WASHINGTON 

GOVERNMENT PRINTING OFFICE 

1913 



^ ^^ / ) L 



In the Senate of the United States, 

May U, 1913. 
Ordered, That the opinion of the Supreme Court of Appeals of West Virginia, 
December 19, 1912, in the case of " State ex rel. Mays v. Brown, warden of 
State Penitentiary," " State ex rel. Nance v. Same," together with the pamphlet, 
" In the Supreme Court of Appeals of West Virginia, In re Mary Jones, In re 
Chas. H. Boswell, In re Charles Batley, In re Paul J. Paulson," be printed as a 
public document. 

Attest: James M. Bakeb, 

Secretary. 
2 



D. OF D. 
mi 29 1913 



/ 



1>^>V 



\ 



STATE EX EEL. MAYS v. BROWN, WARDEN OF STATE 

PENITENTIARY. 

STATE EX REL. NANCE v. SAME. 

(Supreme Court of Appeals of West Virginia. Dec. 19, 1912.) 

{Syllabus by the Court.) 

1. Insurrection (Sec. 5') — Martial Law — Declaration — Power of Governor. 
The governor of this State has power to declare a state of war in any towm, 

city, district, or county of the State in the event of an invasion thereof by a 
hostile military force, or an insurrection, rebellion, or riot therein, and in such 
case to place such town, city, district, or county under martial law. 

[Ed. Note. — For other cases, see Insurrection, Cent. Dig., sec. 5; Dec. Dig., 
sec. 5.'] 

2. Insurrection (sec. 5') — State Sovereignty — Constitutional Guaranties — 

Habeas Corpus. 

The constitutional guaranties of subordination of the military to the civil 
power, trial of citizens for offenses cognizable by the civil courts in such courts 
only, and maintenance of the writ of habeas coiinis are to be read and inter- 
preted so as to harmonize with other provisions of the Constitution authorizing 
the maintenance of a military organization, and its use by the executive to repel 
invasion and suppress rebellion and insurrection, and the presumption against 
intent on the part of the people, in the formulation and adoption of the Con- 
stitution, to abolish a generally recognized incident of sovereignty, the power of 
self-preservation in the State by the use of its military power in cases of in- 
vasion, insurrection, and riot. 

[Ed. Note. — For other cases, see Insurrection, Cent. Dig., sec. 5; Dec. Dig., 
sec. 5.^] 

3. Constitutional Law (sec. 68^) — Declaration — Review by Courts. 

It is within the exclusive province of the executive and legislative depart- 
ments of the Government to say whether a state of war exists, and neither 
their declaration thereof nor executive acts under the same are reviewable by 
rhe courts while the military occupation continues. 

[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig., sees. 125- 
127; Dec. Dig., sec. 68'] 

4. Insurrection (sec 5') — Military Commission — Trial of Offense. 

The authorized application of martial law to territory in a state of war 
includes the power to appoint a military commission fof the trial and punish- 
ment of offenses within such territory. 

[Ed. Note. — For other cases, see Insurrection, Cent. Dig., sec. 5; Dec. Dig., 
sec. 5\] 

5. Insurrection (sec 5') — Martial Law — Power of Courts. 

Martial law may be instituted in case of invasion, insurrection, or riot in a 
magisterial district of a county, and offenders therein punished by the military 
commission notwithstanding the civil courts are open and sitting in other por- 
tions of the county. 

[Ed. Note. — For other cases, see Insurrection, Cent. Dig., sec. 5; Dec. Dig., 
sec. 5M 

1 For other cases see same topic and section number in Dec. Dig. and Am. Dig. Key-No. 
Series and Rep'r Indexes. 



4 IlfSUKRECTIOlSr AND MARTIAL LAW. 

6. INSXJKRECTION (SEC. 5^) — MARTIAL LAW — MILITARY COMMISSION — OFFENSES. 

Acts committed in a short interim between two military occupations of a 
territory for the suppression of insurrectionary and riotous uprisings and such 
in their general nature as those characterizing the uprising are punishable by 
the military commission within the territory and period of the military occu- 
pation. 

[Ed. Note. — For other cases, see Insurrection, Cent. Dig., sec. 5; Dec. Dig., 
sec. 5\] 

Robinson, J., dissenting: 

Habeas corpus by the State on relation of L. A. Mays, and on 
relation of F. S. Nance, to secure relator's release from custody of 
M. L. Brown, warden of the State penitentiary. Writs denied. 

Belcher, Stiles & Goettman, for petitioner. William G. Conley, 
attorney general; George S. Wallace, acting judge advocate gen- 
eral, of Charleston; and J. O. Henson, assistant attorney general, 
for respondent. 

Pofl'enbarger, J. L. A. Mays and S. F. Nance, in the custody of 
M. L. Brown, warden of the penitentiary of this State, under sen- 
tences of a military commission appointed by the governor to sit in 
a territory corresponding in area and boundaries with the magisterial 
district of Cabin Creek, in the county of Kanawha, in which the said 
governor had declared a state of war to exist, by proclamation duly 
issued and published, seek discharges and liberation upon writs of 
habeas corpus duly issued by this court. Upon these writs, lack of 
authority in the governor to institute, in cases of insurrection, inva- 
sion, and riot, martial law is denied in argument. A further conten- 
tion is that his power to do so extends only to the inauguration or 
establishment of a limited or qualified form of such law, subordinate 
to the civil jurisdiction and power to a certain extent, and certain 
provisions of the State constitution are relied upon as working this 
restraint upon the executive power, among them the provision of sec- 
tion 4 of article 3, saying, " The privilege of the writ of habeas corpus 
f hall not be suspended," and the provision of section 12 of the same 
article, saying, " The military shall be subordinate to the civil power, 
and no citizen, unless engaged in the military service of the State, 
shall be tried or punished by any military court for any offense that 
is cognizable by the civil courts of the State." A minor question is 
whether offenses committed immediately before the proclamation of 
martial law, but connected with the insurrection and operative 
therein, may be punished by a military commission acting within the 
period of martial occupation and rule. 

All agree as to the character and scope of martial law, unrestrained 
by constitutional or other limitations. The will of the military chief, 
in this instance the governor of the State, acting as commander in 
chief of the army, is subject to slight limitations, the law of the 
military zone or theater of war. It is sometimes spoken of as a sub- 
stitute for the civil law. It is said also that the proclamation of 
martial law ousts or suspends the civil jurisdictions. These expres- 
sions are hardly accurate. The invasion or insurrection sets aside, 
suspends, and nullifies the actual operation of the constitution and 
laws. The guaranties of the constitution, as well as the common law 
and statutes and the functions and powers of the courts and officers, 
become inoperative by virtue of the disturbance. The proclamation 
of martial law simply recognizes the status or condition of things 
resulting from the invasion or insurrection and declares it. In send- 



INSURRECTION AND MARTIAL LAW. 5 

iiig the army into such territory to occupy it and execute the will of 
the military chief for the time being, as a means of restoring peace 
and order, the executive merely adopts a method of restoring and 
making effective the constitution and laws within that territory in 
obedience to his sworn duty to support the constitution and execute 
I he laws. 

(1) This power is a necessar^^ incident of sovereignty. It is neces- 
sary to the preservation of the State. Subject to the jurisdiction and 
powers of the Federal Government, as delegated or surrendered up 
by the provisions of the Federal Constitution, this State is sovereign 
and has the powers of a sovereign State. Like all others, it must 
have the poAver to preserve itself. Where that power resides and 
how it is to be exercised are questions about which there has been 
some difference of opinion among jurists and statesmen. Whether 
the executive, without legislative authority, may exercise it need not 
be discussed. Section 92 of chapter 18 of the code confers upon the 
governor authority to declare a state of war in towns, cities, districts, 
and counties in which there are disturbances by invasion, insurrec- 
tion, rebellion, or riot. Moreover, section 12 of article 7 of the consti- 
tution itself seems to confer such authority upon the governor, say- 
ing he "may call out" the military forces "'to execute the laws, sup- 
l)ress insurrection, and repel invasion." Hence we may say the in- 
auguration of martial law in any portion of this State by proclama- 
tion of the governor has both constitutional and legislative sanction 
in express terms. 

(2) The provisions against the suspension of the writ of habeas 
corpus and trial of citizens by military courts for offenses cognizable 
by the civil courts can not in the nature of things be actually opera- 
tive in any section in which the constitution itself and the functions 
of the courts have been ousted, set aside, or obstructed in their opera- 
tion by an invasion, insurrection, rebellion, or riot. In such cases the 
constitutional guaranties of life, liberty, and property have ceased to 
be operative and efficacious. The lives, liberty, and property of the 
people are at the mercy of the invading, insurrectionary, rebellious, or 
riotous element in control. Their will and desires, not the constitu- 
tion and laws, rule and govern. There is no court with power to 
grant or enforce the writ of habeas corpus within the limits of such 
territory. There is no court in which a citizen can be tried nor any 
whose process can be made effective for any purpose. No doubt the 
constitution and laws of the State are theoretically or potentially 
operative, but they are certainly not in actual and effective operation. 
The exercise of the military power, disregarding for the time being 
the constitutional provisions relied upon, is obviously necessary to 
the restoration of the effectiveness of all the provisions of the consti- 
tution, including those which are said to limit and restrain that 
powder. 

To ascertain the extent and purpose of the incorporation of these 
restrictive provisions of the Constitution they must be read in the 
light of principles developed by governmental experience in all ages 
and countries and universally recognized at the date of the adop- 
tion of the Constitution and not expressly abolished or precluded 
from operation by any terms found in the instrument. In the inter- 
pretation of contracts, statutes, and constitutional provisions words 
are often limited and restrained to a scope and effect somewhat nar- 



b INSUERECTIOISr AND MARTIAL LAW. 

rower than their literal import, upon a presumption against intent 
to interfere with or innovate upon well-established and generally 
recognized rules and principles of public policy not expressly 
abolished. (Kailway Co. v. Conley & Avis, 67 W. Va., 129, 165, 67 
S. E., 613; Eeeves v. Eoss, 62 W. Va., 7, 57 S. E., 284; Brown v. 
Gates, 15 W. Va., 131; Cope v. Doherty, 2 Deg. & J., 614; Dillon v. 
County Court, 60 W. Va., 339, 55 S. E., 382.) Nothing can be 
higher in character or more indispensable than this power of self- 
preservation. The experience of all civilization has demonstrated 
its necessity as an incident of sovereignty. In the organization of 
the State its citizens likely did not intend to omit or dispense with 
a power vital to its very existence or the maintenance and efficiency 
of its powers under circumstances which inevitably arise in the life 
of every State. Hence there is strong ground for a presumption in 
favor of the retention of the power in question, which finds support 
in other constitutional provisions, authorizing the maintenance of 
a military organization and the use of it by the executive in the 
repulsion of invasion and suppression of insurrections and riots. 
(Art. 7, sec. 12.) No rebuttal of the presumption nor abolition of 
this sovereign power is found in any express terms of the Constitu- 
tion. 

The guaranties of supremacy of the civil law, trial by the civil 
courts, and the operation of the writ of habeas corpus should be read 
and interpreted so as to harmonize with the retention in the execu- 
tive and legislative departments of power necessary to maintain the 
existence of such guaranties themselves. It is reasonable and logical. 
Otherwise the whole scheme of government may fail. So inter- 
preted, they have wide scope and accomplish their obvious purpose. 
The attempt to extend them further would be futile and result in 
their own destruction. The interruption is of short duration. It is 
only while militarj^ government is used as an instrument of warfare 
that the commander's will is law. (New Orleans v. Steamship Co., 
20 Wall., 387, 22 L. Ed., 354; Ex parte Milligan, 4 Wall., 2, 127, 18 
L. Ed., 281.) That a military occupation of a territory in a state 
of peace and order differs radically from the prosecution of a war 
in the same territory is well established. In Ex parte Milligan, 
cited in the former case, the military is subordinate to the civil 
power, no matter whether the occupancy under tranquil condition 
precedes or follows the military operations. Martial law is opera- 
tive only in such portions of the country as are actually in a state 
of war, and continues only until pacification. Ordinarily the entire 
country is in a state of peace, and on extraordinary occasions calling 
for military operations only small portions thereof become theaters 
of actual war. In these disturbed areas the paralyzed civil author- 
ity can neither enforce nor suspend the writ of habeas corpus, nor 
try citizens for offenses, nor sustain a relation of either supremacy or 
subordination to the military power, for in a practical sense it has 
ceased. But in all the undisturbed, peaceable, and orderly sections 
the constitutional guaranties are in actual operation and can not be 
set aside. (Ex parte Milligan, cited.) In most, if not all, of the 
instances in which the civil courts have treated sentences of military 
commissions as void the commissions acted and the sentences were 
pronounced in tranquil territory, not covered by any proclamation 



INSURRECTION AND MARTIAL LAW. 7 

of martial law, in which there was no actual war and in which the 
Constitution and laws were in full and unobstructed operation. An 
insurrection in a given portion of a State or an invasion thereof by 
a foreign force does not produce a state of war outside of the dis- 
turbed area. A nation may be at war with a foreign power and yet 
have no occasion to institute martial law anywhere within its own 
boundaries, as in the case of the United States in the War with 
Spain. So, during the Civil War, there were vast areas and whole 
States in which there was no actual war. 

(3) It seems to be conceded that if the governor has the power 
to declare a state of war his action in doing so is not reviewable by 
the courts. Of the correctness of this view we have no doubt. The 
function belongs to the executive and legislative departments of the 
government and is beyond the jurisdiction and powers of the courts. 
There is room for speculation, of course, as to the consequences of an 
arbitrary exercise of this high sovereign power, but the people in the 
adoption of their constitution may well be supposed to have pro- 
ceeded upon a well-grounded presumption against any such action 
and assumed that the evil likely to flow from an attempt to hamper 
and restrain the sovereign power in this respect might largely out- 
weigh such advantages as could be obtained therefrom. We are not 
to be understood as saying there would be a lack of remedy in such 
case. The sovereign power rests in the people and may be exerted 
through the legislature to the extent of the impeachment and removal 
from office of a governor for acts of usurpation and other abuses of 
power. 

(4) Power to establish a military commission for the punishment 
of offenses committed within the military zone is challenged in argu- 
ment, but we think such a commission is a recognized and necessary 
incident and instrumentality of martial government. A mere power 
of detention of offenders may be wholly inadequate to the exigencies 
and effectiveness of such government. How long an insurrection or 
a war may last depends upon its character. Such insurrections as 
are likely to occur in a State like this are mild and of short duration. 
But no man can foresee and foretell the possibilities, and a govern- 
ment must be strong enough to cope with great insurrections and 
rebellions as well as mild ones. 

(5) That the courts of Kanawha County sit within the limits of 
that county and outside of the military zone does not preclude the 
exercise of the powers here recogTiized as vested in the executive of 
the State. These petitioners were arrested within the limits of the 
martial zone. There the process of the courts did not and could not 
run during the period of military occupation, and presumptively the 
state of affairs in that district at the time of the military occupation 
and immediately before was such as to preclude the free course and 
effectiveness of the civil law and the process of the court, however 
effective they may have been in other sections of Kanawha County. 
The constitution and laws themselves admit the obvious inadequacy 
and insufficiency of ordinary process and penalties in cases of insur- 
rection by authorizing military suppression thereof. Participants 
therein, arrested and committed to the civil authorities, could easily 
find means of delaying trial, and, liberated on bail, return to the 
insurrectionary camp and continue to render aid and give encour- 



8 ' INSUREECTION AND MARTIAL LAW. 

agement b}^ unlawful acts, and demonstration of their ability to do 
so would itself contribute to the maintenance of the uprising. The 
civil tribunals, officers, and processes are designed for vindication of 
rights and redress of wrongs in times of peace. They are wholly 
inadequate to the exigencies of a state of war incident to an invasion 
or insurrection. So the legislature evidently regards them, since it 
expressly authorizes the governor, " in his discretion," to " declare a 
state of war in towns, cities, districts, and counties." He is not 
required by any principle of international or martial law, the con- 
stitution, or statute to institute it, when proper, by counties. On the 
contrary, the statute authorizes it as to a town, a city, or a district, 
and he is not limited to towns, cities, and districts in which the 
courts sit in times of peace, nor forbidden to put a town, city, or 
district of a county under martial-law rule by the sitting of courts 
elsewhere in the countj^ Section 2 of chapter 17 of the Virginia code 
of 1860 was the same in principle, authorizing the governor to call 
forth the militia to suppress combinations for dismembering the 
State or establishing a separate government in any part of it, or for 
any other purpose powerful enough to obstruct in any part of the 
State the due execution of the laws thereof in the ordinary course of 
proceeding. The Virginia constitutional guaranties were then about 
the same as ours. " There was a provision against suspension of the 
writ of habeas corpus in any case." (Art. 4, sec. 15.) In these 
statutes are found legislative constructions of constitutions harmoniz- 
ing with the conclusions here stated as to the relation and purposes 
of the constitutional i)rovisions, and also the power to place a part 
of a county under martial rule, notwithstanding the courts may be 
open in some other part thereof. 

(6) The offenses for which the petitioners were punished were 
committed in an interim between two successive periods of martial 
government. The first proclamation was raised about the middle of 
October, and the disturbances which had occasioned it immediately 
broke out again, and these offenses were of the kind and character 
which had made the occupation necessary. About the middle of 
November there was a second proclamation of a state of war. Just 
a few days before this second declaration, these offenses were com- 
mitted, and the offenders were found within the military zone, and 
were arrested, tried, and convicted. If the offenses had been wholly 
disconnected with the insurrection and not in furtherance thereof 
there might be doubt as to the authority of the military commission 
to take cognizance of them, although there are authorities for such 
jurisdiction and power as to any sort of offense committed within 
the territory over which martial law has been declared and remain- 
ing unpunished at the time of the declaration thereof. 

We are not reviewing the sentences complained of, nor ascertaining 
or declaring their legal limits. Our present inquiry goes only to 
the question of legality of the custody of the respondent at the 
present time and under the existing conditions. The territory in 
which the offenses were committed is still under martial rule. It 
suffices here to say whether the imprisonment is, under present con- 
ditions, authorized by law, and we think it is. We are not called 
upon to say whether the end of the reign of martial law in the terri- 
tory in question will terminate the sentences, and upon that question 
we express no opinion. 



INSURRECTION AND MARTIAL LAW, 9 

Upon the facts set forth in the petition, we are of the opinion that 
the petitioners are in lawful custody, and we therefore remand them 
to the custody of the respondent. 

Petitioners remanded. 

Robinson. J., dissenting: 

The majority opinion boldly asserts that the sacred guaranties of 
our State constitution may be set aside and wholly disregarded on 
the plea of necessity. It had long been supposed that such a doctrine 
was forever condemned and foreclosed in this State. It was believed 
that the ringing denouncement against that doctrine in the opening 
sentences of our constitution was sufficient to bar it from recognition 
by any citizen, official, or judge. The unmistakable words were sup- 
posed to be too clear ever to endanger our people by a disregard of 
their meaning. Hear them: 

The provisions of the Constitution of tlie United States and of this State 
are operative alil^e in a period of war as in time of peace, and any departure 
therefrom, or violation thereof, under the plea of necessity, or any other plea, 
is subversive of good government, and tends to anarchy and despotism. 
(Art. 1, sec. 3.) 

How closely akin are these words to those that were uttered by 
the Supreme Court of the United States shortly prior to the adop- 
tion of our Constitution: 

The Constitution of the United States is a law for rulers and people, equally 
in war and in peace, and covers with the shield of its protection all classes of 
men at all times and under all circumstances. No doctrine involving more per- 
nicious consequences was ever invented by the wit of man than that any of its 
provisions can be suspended during any of the great exigencies of government. 
Such a doctrine leads directly to anarchy or despotism, but the theory of 
necessity on which it is based is false; for the Government, within the Con- 
stitution, has all the powers granted to it which are necessary to preserve its 
existence. (Ex parte Milligan, 4 Wall., 120; 18 L. Ed. 281.) 

A decision based on that which our people have so clearly con- 
demned and inhibited from recognition in our State government, and 
which the highest tribunal in the land has so plainly declared to be 
pernicious and to have no place in our form of government, meets 
my emphatic dissent. 

It is not difficult to comprehend why our State con.stitution con- 
tains such a clear and unmistakable jjrotest against the disregard of 
constitutional guaranties under the plea of necessity. During the 
decade immediately preceding the making and adoption of that 
instrument, this doctrine of necessity was a live issue before the 
American people. Indeed, just at the close of the Civil War and 
immediately thereafter, the doctrine was one of the foremost issues 
of the times. Events brought it vividly before the nation. Those 
who applied the doctrine during the war and at its close for the sum- 
mary trial and execution of noncombatants were met with the accu- 
sation of murder from both North and South. Even in one of the 
counties of this State a citizen was summarily deprived of his life 
under the plea of military rule and the doctrine that necessity sus- 
pended the constitution. Instances of this character, as well as the 
many instances of imprisonment without civil trial, caused the ques- 
tion to come immediately before the statesmen of the times, and, 
by the debates upon it. to come directly before all the people. The 
people had become thoroughly familiar with the subject. Great 



10 INSUERECTIOJSr AND MAETIAL LAW. 

men of the North, foremost among them the illustrious Garfield, had 
thundered against the doctrine. And at last the great judicial tri- 
bunal of the Nation had set its seal of condemnation upon it. (Ex 
parte Milligan, supra.) But even after this, and only two years prior 
to the assembling of our constitutional convention, the question came 
again before the country in the celebrated cases in North Carolina, 
arising from the use of the militia of that State in the suppression 
of the Ku-Klux Klan. (Ex parte Moore and others, 64 N. C., 802.) 
These cases, because of the marked clash between the military power 
and the judiciary, again made the country to notice the question 
and to observe that the principle of necessity, though denounced by 
the Supreme Court of the United States, was claimed for the pur- 
pose of ignoring the guaranties of a State constitution. And again, 
in the face of the most stubborn resistance from the executive and 
military arm of the government of North Carolina the principle that 
the plea of necessity could deprive one of constitutional trial by jury 
was rejected, with marked emphasis, in an opinion by the eminent 
Chief Justice Pearson of that State. 

So it was that when our constitutional convention assembled in 
1872, the persistent claim that necessity could abrogate a constitu- 
tional provision naturally came to be considered. That convention 
saw, by the recent example in North Carolina, that notwithstanding 
the condemnation that this doctrine of necessity had received from 
the greatest and most cautious minds of the country, it was likely still 
to be claimed in State government. Hence, the strong men of that 
convention deemed it essential to make clear pronouncement against 
such a doctrine ever finding hold in West Virginia. They had be- 
come fully advised about the question by having been face to face 
with it. The people who approved and ratified the constitution were 
advised by the same experience. They hated the doctrine that a con- 
stitution might be set aside or declared inoperative at the will of an 
official created by that constitution itself, as all lovers of constitu- 
tional government hate such a doctrine. Therefore, as a part of their 
compact of government, they adopted the forceful declaration against 
abrogating the guaranties of that compact at any time on the plea 
of necessity. Let us again bring that declaration to mind : 

The provisions of the Constitution of the United States, and of this State, are 
operative alilie in a period of war as in time of peace, and any departure there- 
from or violation thereof, under the plea of necessity or any other plea, is sub- 
versive of good government and tends to anarchy and despotism. 

Can there be any mistake about the meaning of these words? 
Were they put in the constitution for mere sound? No; they were 
put there to bind — to be sacredly kept. 

Martial law can not rightly be sanctioned in West Virginia in the 
face of this constitutional declaration. For, as the majority opinion 
admits, martial law is a departure from the constitution, a plain 
violation thereof, under the plea of necessity. It substitutes the law 
of a military commander for the law of the constitution. It is 
the total abrogation of orderly i^resentment and trial by jury, so 
jealously guarded by the constitution. Then, since martial law is 
such a plain departure from the constitution, that instrument itself 
brands martial law as subversive to good government and as tending 
to anarchy. 



INSURRECTION AND MARTIAL LAW. 11 

Having made this general declaration against martial rule, the 
makers of our constitution went further. They provided that the 
privilege of the writ of habeas corpus should not be suspended. 
This was a radical change from the constitution of 1863, and was 
radically different from the Constitution of the United States. Our 
constitution of 1863 had provided: 

The privilege of the writ of habeas corpus shall not be suspended except 
when in time of invasion, insurrection, or other public danger the public safety 
may require it. (Art. 2, sec. 1.) 

The Constitution of the United States provides: 

The privilege of the writ of habeas corpus shall not be suspended unless 
when in cases of rebellion or invasion the public safety may require it. 

But in the making of our present constitution, in dealing with 
the great writ of freedom, no exception was made. Again, unmis- 
takable, imperative words were used: 

The privilege of the writ of habeas corpus shall not be suspended. (Art. 
3, sec. 4.) 

The people clearly meant something by the change. They evi- 
dently meant exactly what they said — that the great writ which any 
citizen deprived of his liberty without due form of law may com- 
mand should in no case be suspended under a claim of necessity 
for military rule Having so plainly declared in general terms 
against the doctrine of necessity in the former provision, as we 
have seen, they made this provision as to the privilege of the writ 
of habeas corpus to conform to that former declaration. They well 
knew that the exceptions contained in their former constitution, if re- 
tained, would lead to the temptation of encroachment on the guaranties 
of the constitution they were making. Providing that the privilege of 
the writ of habeas corpus should at all times be avaiUible they were 
simply again providing against the claim that constitutional guar- 
anties may be suspended on the plea of necessity : for, as long as 
the writ of habeas corpus is available constitutional guaranties can 
not be ignored. That which Blackstone said about the constitution 
of his country is equally applicable to ours : 

Magna Charta only in general terms declared that no man should be im- 
prisoned contrary to law; the habeas corpus act points him out effectual means, 
as well to release himself, though committed even by the King in council, as to 
punish all those who shall thus unconstitutionally misuse him. (Book 4. p. 4:39.) 

This great, effective writ, by the terms of our State constitution, 
is always available to any citizen deprived of a constitutional guar- 
anty. Since it is so available at all times, how can any departure 
from the constitution be allowed? Indeed the provision that the 
privilege of the writ of habeas corpus shall not be suspended is itself 
virtually a prohibition against martial law, for the availability of 
the writ and the recognition of martial law are totally inconsistent. 

Suspension of the writ of habeas corpus is essentially a declaration of 
martial law. (Messages and Papers of the Presidents, vol. 10, p. 465.) 

Promulgation and operation of martial law within the limits of the Union 
would necessarily be a virtual suspension of the habeas corpus writ for the 
time being. (De Hart's Military Law, p. 18.) 

The declaration of martial law in the State has the effect of suspending it. 
(Cooley, Principles of Constitutional Law, p. 301.) 



12 INSURRECTION AND MARTIAL LAW. 

Practically in England and the United States tlie essence of martial law 
is the suspension of the privilege of the writ of habeas corpus; that is, the 
withdrawal of a particular person or a particular place or district of country 
from the authority of the civil tribunals. (Halleck's International Law, vol. 
1, p. 502. See also May's Constitutional History, ch. 11.) 

The great Lincoln so understood it. In his proclamations he 
merely suspended the writ of habeas corpus. (Messages and Papers 
of the Presidents, vol. 6.) The founders of our State government 
really could have inhibited martial law by no stronger terms : 

The privilege of the writ of habeas corpus shall not be suspended. 

Not content with the two declarations against martial law which 
we have seen, the founders grew even more specific. They again 
said: 

The military shall be subordinate to the civil power ; and no citizen, unless 
engaged in the military service of the State, shall be tried or punished by any 
military court for any offense that is cognizable by the civil courts of the State. 
(Art. 3, sec. 12.) 

There is no ambiguity in these words. He who runs may read. 
They directly strike at martial law ; they directly inhibit martial 
law; for the height of martial law is the supplanting of the civil 
courts by militar}^ courts. But this provision expressly ordains that 
military courts shall never take the place of the civil courts of the 
State for the trial of civil offense. No military sentence for a civil 
offense can rightly stand in the face of these words. Nor can these 
words rightly be overlooked in order to uphold any such military 
sentence. To do so is to make the constitution a rope of sand. 

The men of the constitutional convention of 1872 had all witnessed 
the suspension of the privilege of the writ of habeas corpus and the 
trial and sentence of citizens by military courts. They had learned 
that departure from the constitution, though dictated by the best 
of motives, was liable to abuse. Experience admonished them to 
guard against anything of the kind in the future of their State. 
They no doubt believed that by the three provisions which we have 
noticed they had banished all claim for martial law in this State. 
Determination to do so was plainly dictated to them by the experi- 
ences through which they had passed. By those experiences they 
had come to know the truth of that which Hamilton had written 
long years before : 

Every breach of the fundamental laws, though dictated by necessity, impairs 
that sacred reverence which ought to be maintained in the breast of rulers 
toward the constitution of a country and forms a precedent for other breaches 
whei-e the same plea of necessity does not exist at all, or is less urgent and 
palpable. (The Federalist, No. 25.) 

Can these direct provisions of our constitution be overcome by any 
implication that the people meant to retain martial law whenever 
an executive declared it necessary? Is there a presumption, as the 
majority opinion claims, against intent on the part of the people to 
abolish martial law? Can any such presumption prevail against 
the direct declarations which absolutely negative any such presump- 
tion ? No ; the principle of martial law can not be inherently con- 
nected with any constitutional government in which the constitu- 
tion itself directly declares against the principle as our constitution 
does. 



INSURRECTION AND MARTIAL LAW. 13 

It is said that the State must live. So must the citizen live and 
have liberty — the constitutional guaranties vouchsafed to him. The 
founders of our State government saw fit to exclude this claimed 
theory of implied or presumed right of self-defense in a State. They 
knew it to be absolutely unnecessary as to any State in the American 
Union under the Constitution of the United States. They knew 
that it was even more likely to lead to abuse than to good. They 
could well afford to disclaim it by positive prohibitions against its 
exercise, for the Constitution of the Union fully protected the State. 
Were they not consistent in denouncing and prohibiting a principle 
of self-defense wholly out of harmony with constitutional govern- 
ment and in relying on the safety vouched to the State by the Gen- 
eral Government of the Union of which it is a part? Was not the 
guaranty of the great General Government sufficient for the con- 
tinued life of the State? That guaranty speaks plainly: 

Tlie United States shall guarantee to every State in this Union a republican 
form of government and shall protect each of them against invasion and, on 
application of the legislature or of the executive (when the legislature can not 
be convened), against domestic violence. (Art. 4, sec. 4.) 

Does the State for its preservation need methods so at variance 
with constitutional guaranties as is martial law when it may obtain 
the power of the Union to suppress even domestic violence? Can not 
the militia and the United States Army pacify any section of the 
State or the whole State by methods strictly within the Constitution 
and laws? It was so believed when the Federal Government was 
formed. (Federalist, No. 42.) Referring to this guaranty by the 
General Government, a renowned author and judge says: 

This article, as has been truly said, becomes an immense acquisition of 
strength and additional force to the aid of any State government in case of 
internal rebellion or insurrection against lawful authority. (Cooley, Principles 
of Constitutional Law, 206. See also 1 Tucker's Blackstone, App. 367.) 

It is claimed that the power given by the constitution to the gov- 
ernor as commander in chief of the military forces of the State to 
"call out the same to execute the laws, suppress insurrection, and 
repel invasion," authorizes a proclamation of martial law. Are these 
words to undo every other guaranty in the instrument? Can we 
overturn the many clear, direct, and explicit provisions, all tending 
to protect against substituting the will of one for the will of the 
people, by merest implication from the provision quoted ? That pro- 
vision gives the governor power to use the militia to execute the laws 
as the constitution and legislative acts made in pursuance thereof 
provide they shall be executed. It certainly gives him no authority 
to execute them otherwise. In the execution of the laws the consti- 
tution itself must be executed as the superior law. The governor may 
use the militia to suppress insurrection and repel invasion. But that 
use is only for the purpose of executing and upholding the laws. He 
can not use the militia in such a way as to oust the laws of the land. 
It is put into his hands to demand allegiance and obedience to the 
laws. It therefore can not be used by him for the trial of civil offenses 
according to his own will and law, for to so use it would be to sub- 
vert the very purpose for which it is put into his hands. By the 
power of the militia he may, if the necessity exists, arrest and detain 
any citizen offending against the laws; but he can not imprison him 



14 INSURRECTION AND MARTIAL LAW. 

at his will, because the constitution guarantees to that offender trial 
by jury — the judgment of his peers. He may use military force 
where force in disobedience to the laws demand it ; but military force 
against one violating the laws of the land can have no place in the 
trial and punishment of the offender. The necessity for military 
force is at an end when the force of the offender in his violation of 
the laws is overcome by his arrest and detention. There may be force 
used in apprehending the offender and in bringing him to constitu- 
tional justice, but surely none can be applied in finding his guilt and 
fixing his punishment. 

It is further claimed that the statute which says that the governor 
may declare a state of war in towns, cities, districts, or counties where 
invasion, insurrection, rebellion, or riot exists is legislative authority 
for martial law. (Code 1906, ch. 18, sec. 92.) The readiest answer 
to this argument is that a declaration of war is not a declaration of - 
martial law. The mere presence of war does not set aside constitu- 
tional rights and the ordinary course of the laws. Civil courts often 
proceed in the midst of war. Again, if the act could be construed to 
contemplate martial law, it would be plainly contrary to the provi- 
sions of the State constitution which we have noticed and would be 
utterly invalid. Moreover, it is not within the power of a State legis- 
lature, even when not so directly forbidden as in ours, to authorize 
martial law. Martial law rests not on constitutional, congressional, or 
legislative warrant ; it rests wholly on actual necessity. Nothing else 
can ever authorize it. And that necessity is reviewable by the courts. 
These views are ably supported by one of the most thoughtful and 
impartial students of the subject of martial law that recent years 
has produced — himself Judge Advocate General of the United States 
Army — G. Norman Lieber. In his learned review on the subject, 
published as a War Department document, hereinafter to be specific- 
ally cited, he says : 

It has also been asserted that the principle that the constitutional power to 
declare war includes the power to use the customary and necessary means effec- 
tively to carry it on lies at the foundation of martial law. I can not agree to 
the proposition. It is positively repudiated by those who justify martial law on 
the ground of necessity alone, and the Supreme Court of the United States 
stands committed to no such theory. 

This is high authority, coming as it does from a military source. 
The Judge Advocate General rests not content with individual asser- 
tions; he resorts to the decisions and to sound reasons for his con- 
clusions. He repudiates the view of the minority judges in the Milli- 
gan case. He says further: 

If the question were at the present time to arise whether the legislature of a 
State has the power to declare martial law, we would, in the first place, consult 
the Constitution of the United States, and there we would find this prohibition : 

" No State shall make or enforce any law which shall abridge the privileges or 
immunities of citizens of the United States, nor shall any State deprive any 
person of life, liberty, or property without due process of law, nor deny to any 
person within its jurisdiction the equal protection of the laws. 

The Constitution of the United States affords protection, therefore, against 
the dangers of a declaration of martial law by the legislature of a State as 
well as against the dnnger of its declaration by Congress. The principle 
holds true both as to the United States and the States that the only justifica- 
tion of martial law is necessity. 

It Is a well-settled principle that when a person is vested by law with a 
discretionary power his decision within the range of his discretion is con- 
clusive on all, and therefore binding on the courts. This rule has been applied 



INSURRECTION AND MARTIAL LAW. 15 

to the subject of martial law, aud it has been contended that the oft'cers who 
enforce it are acting within the range of their discretion, aud are protected 
by the principle which makes them the judges of the necessity of the acts 
done in the exercise of a martial-law power. From my standpoint such an 
application of the principle is entirely wrong, for the reason that if martial 
law is nothing more than the doctrine of necessity called out by the State's 
right of self-defense the officer can have no discretion in the matter. He will 
or he will not be able to justify according to his ability to prove the necessity 
for his act; he will find that toleration of the plea that the necessity for his 
act, and therefore its justification, can not be inquired into by the courts 
l)ecause he was acting within the sphere of his lawful discretion. The officer 
is not by any law vested with a discretion in this matter. Such a discretion 
and the doctrine of necessity can not exist together. 

But this necessity need not be absolute, as determined by events subsequent 
to the exercise of the power. The Supreme Court has, as we have already 
seen, laid down the rule much more favorable to the person using the power. 
It is worth repeating : 

" In deciding upon this necessity, however, the state of the facts, as they 
appeared to the officer at the time he acted must govern the decision, for he 
must necessarily act upon the information of others as well as his own observa- 
tions. And if, with such information as he had a right to rely upon, there 
is reasonable ground for believing that the peril is immediate and menacing, 
or the necessity urgent, he is justified in acting upon it. and the discovery 
afterwards tliat it was false or erroneous will not make him a trespasser. 
r.ut it is not sufficient to show that he exercised an honest judgment, and 
took the property to promote the public service; he must show by proof the 
nature and character of the emergency, such as he had reasonable grounds 
to believe it to be, and it is then for a jury to say whether it was so pressing 
as not to admit of delay; aud the occasion such, according to the information 
upon which he acted, that private riglits must for the time give way to the 
common and public good." (Mitchell v. Harmony, 13 How., 135; 14 L. Ed.,75. ) 

Under the Constitution of the United States there can never be any justifica- 
tion for the exercise of the military power to which these remarks relate 
other than the rule of necessity as thus applied. 

In the North Carolina cases, supra, it was sought to justify the 
acts of the governor on provisions of the constitution and statutes 
of that State similar to those relied on in the cases before us; that 
is to say, that the governor may call out the militia, and may declare 
a state of war to exist. But the constitution of that State provided 
exactly as ours provides: 

The privilege of the writ of habeas corpus shall not be suspended. 

That which was said by the chief justice of North Carolina, in 
an opinion approved by his associates, aptly applies to our own 
constitution and laws, and to the cases under consideration. 

Mr. Badger, of counsel for his excellency, relied on the constitution (art, 
12, sec. 3) : "The governor sliall be commander in chief, and have power to 
call out the militia to execute the law, suppress riots or insurrections, and 
to repel invasion"; and on the Statute of 1869-70 (ch. 27, sec. 1): "The 
governor is hereby authorized and empowered, whenever in his judgment the 
civil authorities in any country are made to protect its citizens in the enjoy- 
ment of life and property, to declare such county to be in a state of insur- 
rection, and to call into active service the militia of the State, to such an extent 
as may become necessary to suppress the insurrection"; and he insisted that: 

1. This clause of the constitution, and the statute, empowered the governor 
to declare a county to be in a state of insurrection, whenever, in his judg- 
ment, the civil authorities are unable to protect its citizens in the enjoyment 
of life and property. The governor has so declared in regard to the county 
of Alamance, and the judiciary can not call his action in question, or review it, 
as the matter is confided solely to the judgment of the governor. 

2. The constitution and this statute confer on the governor all the powers 
" necessary " to suppress the insurrection, and the governor has taken military 
possession of the county, aud ordered the arrest and detention of the petitioner 
as a military prisoner. This was necessary, for unlike other insurrections it 



16 INSUEEECTIOISr AND MARTIAL LAW. 

was not open resistance, but a novel kind of insurrection, seeking to effect 
its purpose by a secret association spread over the country, by scourging, and 
by other crimes committed in the dark, and evading tlie civil authorities, by 
masks and fraud, perjury and intimidation ; and that — 

3. It follows that the privilege of the writ of habeas corpus is suspended in 
that county until the insurrection be suppressed. 

I accede to the first proposition ; full faith and credit are due to the action of 
the governor in this matter, because he is the competent authority acting in 
pursuance of the constitution and the law. The power, from its nature, must 
be exercised by the executive, as in case of invasion or open insurrection. The 
extent of the power is alone the subject of judicial determination. 

As to the second, it may be that the arrest and also the detention of the 
prisoner is necessary as a means to suppress the insurrection. But I can not 
yield my assent to the conclusion : The means must be proper, as well as neces- 
sary, and the detention of the petitioner as a militax-y prisoner is not a proper 
means. For it violates the declaration of rights, " the privilege of the writ of 
habeas corpus shall not be suspended." (Constitution, art. 1, sec. 21.) 

This is an express provision, and there is no rule of construction or principle 
of constitutional law by which an express provision can be abrogated and made 
of no force by an implication from any other provision of the instrument. The 
clauses should be construed so as to give effect to each and prevent conflict. This 
is done by giving to article 12, section 3, the effect of allowing military possession 
of a county to be taken and the arrest of all suspected persons to be made by 
military authority, but requii'ing, by force of article 1, section 21, the persons 
arrested to be surrendered for trial to the civil authorities on habeas corpus 
should they not be delivered over without the writ. 

This prevents conflict with the habeas corpus clause and harmonizes with the 
other articles of the " declaration of rights." i. e., trial by jury, etc., all of 
which have been handed down to us by our fathers and by our English ancestors 
as great fundamental principles essential to the protection of civil liberty. 

I declare my opinion to be that the privilege of the writ of habeas corpus has 
Dot been suspended by the action of his excellency ; that the governor has power 
under the constitution and laws to declare a county to be in a state of insur- 
rection, to take military possession, to order the arrest of all suspected persons, 
and to do all things necessary to suppress the insurrection, but he has no power 
to disobey the writ of habeas corpus or to order the trial of any citizen otherwise 
than by jury. According to the law of the land such action would be in excess 
of his power. 

The judiciary has power to declare the action of the executive, as well as the 
acts of the general assembly, when in violation of the constitution, void, and of 
no effect. 

No power for the recognition of martial law could be found in our 
constitution, even were those provisions which directly condemn and 
prohibit it not in the instrument. To say that merest implication or 
presumption totally at variance with express inhibitions and directly 
overthrowing all the important guaranties of the instrument itself 
may be resorted to for the purpose of justifying martial law intro- 
duces a new rule of constitutional construction. The constitutional 
purposes of the militia can not rightly be so subverted. True, the 
militia exists by the constitution, but that military establishment is 
not raised by it ever to take the place of the constitution, its creator. 
The mere raising of a militia does not signify, as the majority con- 
ceive, that it is raised for martial law. It is raised to enforce the laws 
by constitutional methods. It is raised to comply with the great 
military organization of the Federal Government, under the pro- 
visions of the Constitution of the Union. (Art. 1, sec. 8, subd. 16.) 

Let us look at some guaranties of our constitution that may now 
lightly be ignored by the force of the majority decision — that may be 
cast aside by the governor of this State and he not be made to answer 
for ignoring them. Let us see what express words of the instrument 
other than those already observed are torn down by this resort to mere 



INSURRECTION AND MARTIAL LAW. 17 

implication and presumption. Let us see provisions which the people 
as a whole deemed necessary for good government and sought to place 
beyond power of change which are now held to be under the control 
of the commander in chief of the militia by resort to a denounced 
plea of necessity judged by a single individual. It is well enough at 
least to preserve them here. 
Article 3, section 4 : 

* * * No person shall be held to answer for treason, felony, or other 
crime not cognizable by a justice unless on presentment or indictment of a grand 
.iury. No bill of attainder, ex post facto law. or law impairing the obligation of 
a contract shall be passed. 

Article 3, section 10: 

No person shall be deprived of life, liberty, or property without due process 
of law and the judgment of his peers. 

Article 3, section 14 : 

Trials of crimes and misdemeanors, unless herein otherwise provided, shall be 
by a jury of 12 men, public, without unreasonable delay, and in the county 
where the alleged offense was committed, unless upon petition of the accused 
and for good cause shown it is removed to some other county. In all such 
trials the accused shall be fully and plainly informed of the character and 
cause of the accusation and be confronted with the witnesses against him, and 
shall have the assistance of counsel and a reasonable time to prepare for his 
defense, and there shall be awarded to him compulsory process for obtaining 
witnesses in his favor. 

Article 3, section 17 : 

The courts of this State shall be open, and every person, for an injury done 
to him in his person, property, or reputation, shall have remedy by due course 
of law; and justice shall be administered without sale, denial, or delay. 

Can the absolute, unrestrained, and unreviewable will of the gov- 
ernor be substituted for these provisions? That it may is the decision 
of the majority of this court. One gross error of that decision is 
that it bases the right to martial law solely on the decision and proc- 
lamation of the governor and not on actual necessity. No mere deci- 
sion or proclamation can justify martial la.v^, even where it might be 
legally recognized. It can only be justified by the absolute necessity 
of fact for it. War must be so effective as to make the necessity for 
martial law. War must have made it wholly impossible to enforce or 
invoke the civil laws before martial law can be invoked. Even then 
the military commander is accountable before the civil laws when the 
exigency has passed. Plis judgment as to the necessity may be re- 
viewed. There must be ultimate responsibility. It is even so as to the 
suspension of the writ of habeas corpus when a constitution authorizes 
the suspension. (Cooley, Principles of Constitutional Law, 300.) 
The military commander may be compelled to show reasonable 
ground for believing that the infringement of personal and property 
rights was demanded by the occasion. (Stephen, History of Criminal 
Law, 214.) We have seen these principles enunciated by Lieber 
above. See also Ballantine, post. And as long as there is a civil 
court that has the power to try an offender for breach of the civil law, 
martial law can not be applied for the trial of that offender. (Black- 
stone, Book 1, 413.) If a civil court exists that may take cognizance, 
then necessity for martial trial does not exist. As long as the civil 
law can be executed by the presence and operation of civil courts, 

S. Doc. 43, 63-1 2 



18 IISrSUKEECTION AND MAETIAL LAW. 

martial law through military courts can not take its place. Martial 
law can only operate where the civil law has become inoperative by 
the absence of courts. It is the actual, physical annihilation of the 
civil courts by the war that makes the only necessity upon which trial 
by martial law may ever be had. It is not merely the decision of the 
executive or the legislature that military courts will be more effective 
than the existing civil courts that can make the necessity. Nothing 
short of the absence of civil- resort for trial can ever justify military 
trial of civil offenses. 

If, in foreign invasion or civil war, tlie courts are actually closed and it is 
impossible to administer criminal justice according to law, then on the theater 
of active military operations, where war really prevails, there is a necessity to 
furnish a substitute for the civil authority thus overthrown to preserve the 
safety of the Army and society ; and as no power is left but the military, it is 
allowed to govern by martial rule until the laws can have their free course. 
As necessity creates the rule, so it limits its duration; for if this Government 
is continued after the courts are reinstated it is a gross usurpation of power. 
(Ex parte Milligan, supra.) 

We shall now soon proceed to see how these principles, announced 
by the Supreme Court of the United States, sustained preeminently 
by the best thought of all constitutional governments, as a research 
will show, apply to the cases of the petitioners, Nance and Mays. 
But before proceeding thereto it will be necessary to show the actual 
status of these cases. It may be inferred from the majority opinion 
that Nance and Mays are mere prisoners of war. They occupy no 
such relation. Nor are they merely detained by the militia in the 
suppression of riot, insurrection, or rebellion. Their petition for 
writs of habeas corpus and the returns of the warden of the peni- 
tentiary thereto make no such cases against them. Nor was it argued 
at the bar or in the briefs that they have any such relation. It 
plainly appears that they are citizens of Kanawha County, not 
connected with the military service, charged before a military com- 
mission for violations within that county of certain provisions of the 
statutes of West Virginia amounting thereunder to misdemeanors, 
arrested by the militia, tried by military commission pursuant to 
the order of the governor, sentenced for specific terms in the peniten- 
tiary, and transported thereto for imprisonment for their respective 
terms of sentence by the approval of the governor as commander in 
chief, all at a time w^hen the criminal courts of Kanawha County 
were open, able, and with full jurisdiction to try the charges against 
them. In other words, these petitioners are held, as the returns show, 
on specific sentences, one for five years, the other for two, in the 
penitentiary, as civil offenders tried and committed by a military 
court under the guidance of the following military order. 

State Capitol, 
Charleston, Not'emlier 16. 1912. 
General Orders, No. 23. 

The following is published for the guidance of the military commission, 
organized under General Orders, No. 22, of this office, dated November 16, 1912 : 

1. The military commission is substituted for the criminal courts of the 
district covered by the martial-law proclamation, and all offenses against the 
civil laws as they existed prior to the proclamation of November 15, 1912, shall 
be regarded as offenses under the military law, and as a punishment therefor 
the military commission can impose such sentences, either lighter or heavier 
than those imposed under the civil law, as in their judgment the offender may 
merit. 



INSURRECTION AND MARTIAL LAW. 19 

2. Cognizances of offenses against the civil law as they existed prior to 
November 15, 1912, committed prior to the declaration of martial law and 
unpunished, will be taken by the military commission. 

3. Persons sentenced to imprisonments will be confined in the penitentiary 
at Moundsville, W. Va. 

By command of the governor : 

C. D. Elliott, Adjutant General. 

The returns of the warden do not pretend to justify his authority 
to hold petitioners other than under sentences for specific terms by 
this military commission. He justifies under no other commitments. 
It is to the commitments that we must look in these proceedings to 
determine the legality of the imprisonment. Says the great com- 
mentator : 

The glory of the English law consists in defining the time, the causes, and 
the extent, when, wherefore, and to what degree the imprisonment of the sub 
ject may be lawful. This it is which induces the absolute necessity of express- 
ing upon every commitment the reason for which it is made; that the court 
upon an habeas corpus may examine into its validity. (Blackstone, book 3, 
p. 133.) 

What actual necessity justified the creation of this military com- 
mission and the recognition of its powers to supplant the civil courts? 
As Ave have seen, nothing but the complete lack of power of the civil 
courts for the trial of the charges against Nance and Mays, arising 
by the annihilation and inoperation of those courts, could, if martial 
law was at all allowable, justify their military trial and sentence. 
Could Nance and Mays have been tried for the offenses with which 
they were charged by the civil courts, under the ordinary forms of 
law, as an actual fact ? We know by the record of these cases, we 
know judicially, that they could have been so tried. But an answer 
that is attempted is this — that the governor by his proclamation had 
set off the portion of the county in which the offenses were com- 
mitted and the offenders were arrested as a martial-law district. 
Again we say the mere proclamation could not alone make the neces- 
sity. The physical status must make it. No physical status existed, 
like the destruction of the ordinary courts, to make it necessary to try 
Nance and Mays other than they would have been tried if no dis- 
turbances had existed in Cabin Creek district. Those disturbances 
had not interruj^ted the very court that would have tried them if 
there had been no such disturbances. Those disturbances did not 
physically prevent the transportation of Nance and Mays out of the 
riotous district to the county seat for trial. If they could be trans- 
ported out of that district to Moundsville for imprisonment, as they 
were, they could readily have been transported to Charleston for trial. 
It is said that the process of the court was prevented from execution 
in that district by the disturbances. That made no necessit}^ for trial 
there. Surely the militia which was in possession of the district could 
execute all process of the court or cause the sheriff so to do. That 
was a very proper sphere of the militia in a riotous district (Ballan- 
tine. post). It can legally assist in the execution of the process of 
the civil courts. Thus, it may assist in the execution of the laws. 
But plainly it can not supplant operative civil courts. The militia 
must aid the courts, not suiDplant them. Both are created by the same 
Constitution. They belong to the same people. They must work in 
harmony as the people contemplated when the}^ established both. The 



20 INSUEEECTION AND MARTIAL LAW. 

proper province of the Army in such cases of disturbance as those 
on Cabin Creek was observed in the beginning of the Government, at 
the time of the whisky insurrection in western Pennsylvania in 1793 : 

President Washington did not march with his troops until the judge of the 
United States district court had certified that the marshal was unable to execute 
his warrants. Though the parties were tried for treason, all the arrests were 
made by the authority of the civil officers. The orders of the Secretary of War 
stated that " the object of the expedition was to assist the marshal of the 
district to make prisoners." Every movement was made under the direction 
of the civil authorities. So anxious was Washington on this subject that he 
gave his orders with the greatest care and went in person to see that they 
were carefully executed. He issued orders declaring that " the Army should 
not consider themselves as judges or executioners of the laws but only as em- 
ployed to support the proper authorities in the execution of the laws." (Gar- 
field's Works (Hinsdale), vol. 1, p.. 162.) 

The offenses of Nance and Mays were cognizable by a civil court^ — 
that is, they were capable of being tried in the proper criminal court 
of Kanawha County by a jury upon presentment and indictment by 
a grand jury. The disturbances did not make it impossible to give 
them the constitutional course of trial. Thus no necessity justified 
the course pursued. No actual physical fact, in the widest view, 
prevented the operation of the direct shield of the Constitution, 
wherein it provides: 

No citizen * * * shall be tried or punished by any military court for 
an ofCense that is cognizable by the civil courts of the State. 

The offenses charged against Nance and Mays were plainly cog- 
nizable by a civil court — capable of being presented and tried there. 
The only excuse for their not being tried there is that the governor 
ordered otherwise. Thus the governor alone made the necessity. 
Under the circumstances, in any considerate view, their trials and 
sentences were not by due process of law and were grossly illegal 
and void. 

There were no courts, other than those of justices, within the actual 
theater of the disturbances on Cabin Creek that could be rendered 
inoperative by the riotous condition there. The criminal court that 
pertained to that part and to the whole of the county was far from 
the seat of riot and wholly unaffected in its powers for regular and 
orderly presentment and trial. Even as to offenses cognizable only 
by justices there was power and opportunity to bring offenders from 
that region to trial before justices in undisturbed districts of the 
county. But it does not even appear that the disturbances in the 
district rendered it impossible, by the aid of the militia there present, 
for the courts of justices of the peace there to mete out justice accord- 
ing to the civil law. The war must put the ordinary courts out of 
business — out of reach — before military courts can ever take their 
place. This, of course, may be different in foreign conquered terri- 
tory where the courts of the conquered country are not in sympathy 
with the obligations of the conquering army to society. It can not 
be gainsaid that the ordinary courts for Cabin Creek district were 
at all times during the disturbances within reach and in operation. 
The militia could reach them with prisoners for trial much more 
easily than it could reach the penitentiary with prisoners for impris- 
onment. The State courts were more accessible than the State prison. 
This principle, that accessibility to the ordinary civil courts excludes 



INSUEEECTION AND MARTIAL LAW. 21 

resort to martial law, is established by the decision in the Milligan 
case in no uncertain language. We need no greater precedent. 

Some of that which we have written in preceding paragraphs is 
based on the assumption of the tolerance of martial law, simply, of 
coui'se, for the purposes of argument. We reiterate that it can never 
be rightly tolerated in this State. Indeed, martial law to the extent 
of trial and sentence for civil oflfense, anywhere within our fair land 
deserves no support from any student of constitutional history. Gar- 
field, by his great argument and review of history before the Supreme 
Court of the United States, in the Milligan case, convinces any 
thoughtful reader in this behalf. No greater exposition of the sub- 
ject, no severer condemnation of martial law as connected with con- 
stitutional government, was ever given to the world. It was given 
voluntarily, gratuitously, faithfully, solely in behalf of constitutional 
government. Yet it is but one among the many supporting the great 
weight of opinion on the subject. (Garfield's Works (Hinsdale), 
vol. 1, p. 143.) 

The most recent review of the subject of martial law is that by Prof. 
Ballantine, of the University of Montana. It deals with all the ad- 
judged cases, and assures one of the soundness of its conclusions. 
Specific citation to it will hereinafter be made. It denies that martial 
law may be applied in State government. This writer says : 

It is believed that there is no warrant in the history of constitutional govern- 
ment for vesting in the governor, as commander of the military forces of the 
State, the absolnte discretionary power of arrest, and, as a logical consequence, 
of life and death, so that his command or proclamation may take the place of 
a statute and convert larceny into a capital offense, in going beyond legislative 
power, deprive citizens unreasonably and arbitrarily of life or liberty without 
review in the courts. (Johnson v. Jones (1867), 44 111., 142 [92 Am. Dec, 159] ; 
Ela V. Smith (1855), 5 Gray (Mass.), 121 [66 Am. Dec, 356].) 

The true view, undoubtedly, is that during a riot or other disturbance militia- 
men and their officers are authorized to act merely as a body of armed police, 
with the ordinary powers of police officers. (Franks v. Smith (1911) [142 Ky., 
2321. 134 S. W., 484 [Ann. Cas. 191 2D. 319].) This is as far as the actual 
decision goes in Luther v. Borden (1849, 7 How., 1 [12 L. Ed., 581].) Their 
military character can not give them immunity for unreasonable excess of 
force. The governor of a State, as commander of the militia, is merely the 
chief conservator of the peace, and entirely destitute of power to proclaim 
martial law, punish criminals, or subject citizens to arbitrary military orders 
which he unreasonably believes to be demanded by public emergency. 

* S)i * * * Iff * 

In a garrisoned city held as an outpost of loyal territory, or in home districts 
threatened or recently evacuated by the enemy, military necessity for the public 
defense would certainly .justify all temporai-y restrictions on the liberty of 
citizens essential to military operations, such as the extinguishment of lights, 
the requiring of military passes to enter or depart, and the quelling of public 
disorder. But the prosecution and punishment of persons suspected of con- 
spiracy, sedition, or disloyal practices, and of treason itself, belongs to the 
tribunals of the law and not to the sword and bayonet of the military. Where 
the Army is not invading enemy territory of a recognized belligerent, but Is in 
its own territory, the military authorities remain liable to be called to account 
either in habeas corpus or any other .iudicial procee<ling for excess of authority 
toward citizens, no matter whether it occurred in propinquity to the field of 
actual hostilities or while the courts were closed or after a proclamation of 
martial law. 

The issue involved in these cases is a marked one: Shall a citizen 
be subjected to trial before a military commission regardless of con- 
stitutional guaranties at any time the governor may see fit, and that 



22 INSUEEECTIOlSr AND MARTIAL LAW. 

citizen have absolutely no redress from such procedure? In other 
words, may any citizen be absolutely within the power of the execu- 
tive and the militia which has been placed in his hands? These 
questions are indeed more momentous than the people of this busy era 
may conceive. The affirmative answer to them annuls that tiTie 
liberty which was bought by blood and sacrifice and which long has 
been jealously guarded and defended. It seems necessary that we 
should repeat what Mr. Justice Davis said in the Milligan case : 

It is claimed that martial law covers with its broad mantle the proceedings 
of this military commission. The proposition is this : That in a time of war 
the commander of an armed force (if in his opinion the exigencies of the coun- 
try demand it, and of which he is to judge), has the power, within the lines of 
his military district, to suspend all civil rights and their remedies, and subject 
citizens as well as soldiers to the rule of his will, and in the exercise of his 
lawful authority can not be restrained, except by his superior officer or the 
President of the United States. 

If this position is sound to the extent claimed, then when war exists, foreign 
or domestic, and the country is subdivided into military departments for mere 
convenience, the commander of one of them can, if he chooses, within the 
limits, on the plea of necessity, with the approval of the Executive, substitute 
military force for and to the exclusion of the laws, and punish all persons, as 
he thinks right and proper, without fixed or certain rules. 

The statement of this proposition shows its importance, for if true repub- 
lican government is a failure, and there is an end of liberty regulated by law. 
Martial law, established on such a basis, destroys every guaranty of the Con- 
stitution, and effectually renders the " military independent of and superior 
to the civil power " — the attempt to do which by the King of Great Britain was 
deemed by our fathers such an offense that they assigned it to the world as one 
of the causes which impelled them to declare their independence. Civil liberty 
and this kind of martial law can not endure together; the antagonism is irre- 
concilable, and in the confiict one or the other must perish. 

This Nation, as experience has proved, can not always remain at peace and 
has no right to expect that it will always have wise and humane rulers sin- 
cerely attached to the principles of the Constitution. Wicked men ambitious 
of power, with hatred of liberty and contempt of law, may fill the place once 
occupied my Washington and Lincoln, and if this right is conceded and the 
calamities of war again befall us the dangers to human liberty are frightful 
to contemplate. If our fathers had failed to provide for just such a contin- 
gency they would have been false to the trust reposed in them. They knew — the 
history of the world told them— the Nation they were founding, be its existence 
short or long, would be involved in war ; how often or how long continued 
human foresight could not tell ; and that unlimited power, wherever lodged 
at such a time, was especially hazardous to freemen. For this and other equally 
weighty reasons they secured the inheritance they had fought to maintain by 
incorporating in a written Coustitution the safeguards which time had proved 
wore essential to its preservation. Not one of these safeguards can the Presi- 
dent or Congress or the judiciary disturb, except the one concerning the writ 
of habeas corpus. 

It is essential to the safety of every Government that in a great crisis like 
the one we have just passed through there should be a power somewhere of 
suspending the writ of habeas corpus. In every war there are men of pre- 
viously good character wicked enough to counsel their fellow citizens to resist 
the measures deemed necessary by a good government to sustain its just 
authority and overthrow its enemies, and their influence may lead to dangerous 
combinations. In the emergency of the times an immediate public investiga- 
tion according to law may not be possible, and yet the peril to the country may 
be too imminent to suffer such persons to go at large. Unquestionably there is 
then an exigency which demands that the Government, if it should see fit in 
the exercise of a proper discretion to make arrests, should not be required to 
produce the person arrested in answer to a writ of habeas corpus. The Con- 
stitution goes no further, It -Aoes not say after a writ of habeas corpus is 
denied a citizen that he shall be tried otherwise than by the course of common 
law. If it had intended this result it was easy, by the use of direct words, to 
have accomplished it. The illustrious men who framed that instrument were 



IISrSURKECTIOlSr AND MARTIAL LAW. 23 

j-iiMrtling the foundations of civil liberty against the abuses of unlimited power. 
'J^iiey were full of wisdom, and the lessons of history informed them that a 
trial by ;'n established court, assistefl by an impartial jury, was the only sure 
way of protecting the citizen against oppression and wrong. Knowing this, 
they limited the suspension to one great right and left the rest to remain for- 
e\er inviolate. But it is insisted that the safety of the country in time of war 
demands that this broad claim for martial law shall be sustained. If this were 
true, it could be well said that a country preserved at the sacrifice of all the 
cardinal principles of liberty is not worth the cost of preservation. 

A search of the books, extending over many days of labor in the in- 
vestigation of this subject, discloses that no State in the Union has 
ever declared, by judicial decision or otherwise, principles to the ex- 
tent of those announced by the majority opinion of this court. West 
Virginia, born of a love for and an adherence to constitutional gov- 
ernment, seems now to have departed furthest therefrom. In Colo- 
rado and Idaho arrests and extended detention by the militia for 
the suppressing of riot and insurrection have been upheld as author- 
ized by the exigencies existing and as necessary for the suppression 
of uprisings. But further than this no State has ever gone. The 
Supreme Court of the United States went no further in the Moyer 
case (212 U. S., 78; 29 Sup. Ct., 235; 53 L. Ed., 410). No court ever 
before upheld the action of a governor in ousting the courts of their 
jurisdiction as to civil offenses and in substituting him.self therefor. 

This State is a goA^ernment of its own people. It should matter 
not that civil rights may at some time have been transgressed else- 
Avhere. We should not permit them to be transgressed here. The 
insignia of the State bears our legend of freedom. It can not be 
kept unless we sacredly observe the Constitution by Avhich all, whether 
guilty or innocent, are bound alike. Freedom for a West Virginian 
means the giving to him what his State constitution and that of the 
Nation guarantee to him. Nor does it matter whether that West 
A^irginian be rich or poor, idler or laborer, millionaire or mountaineer. 
The constitution is no respecter of persons. 

A sense of duty has impelled the writing of this opinion. If it 
may in the future only cause the doctrine promtilgated by the ma- 
jority to be questioned, the labor will not have been in vain. 

Will the reader of this opinion reserve hasty judgment against 
conclusions which it announces until he has made studious examina- 
tion of the citations herein and the three following expositions on 
the subject of martial law. together with the cases cited in them? 

Military Commissions, Garfield's Works (Hinsdale), volume 1, page 143. 
What is the Justifii"ation of Martial Law? Lieber. War Department, Docu- 
ment No. 79 ; North American Review, November, 1S96. 

Martial Law, Ballantine, Columbia Law Review, June, 1912. 

The decisions and treatises relied on herein make no distinction in 
the test for martial law, whether in pacific districts or in the theater 
of actual war. In the one place as well as in the other the test is the 
same — the want of operative civil courts. An examination of the 
subject will not sustain a contention that the courts and the writers 
referred to were dealing only with martial law outside of the theater 
of actual war. They clearly show that martial law is as objectionable 
in the one place as in the other, unless it is justified by the absence of 
civil law. 

Will the reader who refers to the decisions and treatises cited also 
note that there is a clear distinction between the power to tise martial 



24 INSUEREOTION AND MARTIAL LAW. 

acts for the suppression of riot, insurrection, or rebellion and the 
power to use martial law for the trial of civil offenses. Martial acts 
are one thing; martial law is another. 

It may be said that the treatises referred to are not judicial in 
character. The same is true as to every textbook of the law. 

And now, how applicable are the words of David Dudley Field, 
that ardent advocate of constitutional government: 

I could not look into the pages of English law — I could not turn over the 
leaves of English literature — I could not listen to the orators and statesmen of 
England, without remarking the uniform protest against martial usurpation, 
and the assertion of the undoubted right of every man, high or low, to be 
judged according to the known and general law, by a jury of his peers, before 
the judges of the land. And when I turned to the history, legal, political, and 
literary of my own country — my own undivided and forever indivisible 
country — I found the language of freedom intensified. Our fathers brought 
with them the liberties of Englishmen. Throughout the colonial history, we 
find the colonists clinging, with immovable tenacity, to trial by jury. Magna 
Charta, the principle of representation, and the petition of right. They had 
won them in the fatherland in many a high debate and on many a bloody field; 
and they defended them here against the emissaries of the crown of England 
and against the veteran troops of France. We, their children, thought we had 
superadded to the liberties of Englishmen the greater and better guarded 
liberties of Americans. (Brewer's Orations, vol. 6, p. 2154.) 

ADDITIONAL OPINION. 
POFFENBARGEK, P. : 

The attempt, in the dissenting opinion prepared since the filing of 
the court opinion, to apply to these cases principles, deemed clearly 
inapplicable by all concurring in the decision, renders it proper, in 
our judgment, to file an additional opinion, pointing out more specifi- 
cally the grounds of distinction, and also to direct attention to the 
nonjudicial and speculative character of much of the matter quoted 
in the dissenting opinion. 

The Milligan case (4 Wall. 2, 18 L. Ed., 281), the opinion in which 
constitutes the real basis of the elaborate argument against the views 
of the majority of the court, arose in the State of Indiana, in which 
there was no actual war nor any pretense thereof. That State was in 
a military, but nevertheless peaceable district. Milligan was a citizen 
of the State, arrested therein upon a charge of conspiracy against the 
Government of the United States, tried on that charge by a military 
commission, convicted and sentenced to death. The specifications 
under the charge were substantially as follows : That Milligan with 
others, in a time of actual war, set on foot a secret military organiza- 
tion for the purpose of overthrowing the Government, and conspired 
to seize the United States and State arsenal, and to release the 
prisoners of war confined in the military prison under charge of the 
military authorities, to arm these prisoners, to join with them such 
other forces as they could raise, and to march into Kentucky and 
Missouri and to cooperate with the rebel forces there; that the con- 
spirators communicated with the enemy to induce them to invade the 
States of Kentucky, Indiana, and Illinois, intending themselves to 
join and cooperate with the enemy in the event of such an invasion,' 
and that they armed themselves for that purpose. Of the character 
of the case, the court said : 

It will be borne in mind that this is not a question of the power to proclaim 
martial law, when war exists in a community and the courts and civil au- 
thorities are overthrown. Nor is it a question what rule a military commander, 



INSURRECTION AND MARTIAL LAW. 25 

;it the head of his army, can impose on States in rebellion to cripple their 
resources and quell the insurrection. The jurisdiction claimed is much more 
extensive. The necessities of the service, durinfr the late Rebellion, required 
that the loyal States should be placed within the limits of certain military 
districts and commanders appointed in them, and it is urged that this, in a 
military sense, constituted them the theater of military operations; and, as in 
this case, Indiana had been, and was again, threatened with invasion by the 
enemy. The occasion was furnished to establish martial law. The conclusion 
does not follow from the premises. If armies were collected in Indiana, they 
were to be employed in another locality, wdiere the laws were obstructed and 
the national authority disputed. On her soil there was no hostile foot ; if once 
invaded, that invasion was at an end, and with it all pretext for martial law. 
Martial law can not arise from a threatened invasion. The necessity must be 
actual and present, the invasion real, such as effec-tually closes the courts and 
deposes the civil administration. It is difficult to see how the safety of the 
country required martial law in Indiana. If any of her citizens were plotting 
treason, the power of arrest could secure them, until the Government was 
prepared for their trial, when the courts were open and ready to try them. 
It was as easy to pi'otect witnesses before a civil, as a military tribunal ; and 
as there could be no wish to convict, except on sufficient legal evidence, surely 
an ordained and established court were better able to judge of this than a 
military tribunal composed of gentlemen not trained to the profession of the 
law. 

Of the class of cases to which this one belongs, and that one did not, 
the court said : 

It follows, from what has been said on this subject, that there are occasions 
when martial rule can be properly applied. If, in foreign invasion or civil 
war, the courts are actuallj^ closed and it is impossible to administer criminal 
justice according to law, then, on the theater of actual military operations, 
where war really prevails, there is a necessity to furnish a substitute for the 
civil authority thus overthrown to preserve the safety of the Army and 
.society; and, as no power is left but the military, it is allowed to govern by 
martial rule until the laws can have their free course. As necessity creates 
the rule, so it limits its duration ; for, if this Government is continued after 
the courts are reinstated it is a gross usurpation of power. Martial rule can 
never exist where the courts are open and in the proper and unobstructed 
exercise of their jurisdiction. It is also confined to the locality of actual 
war. Because during the late rebellion it could have been enfox'ced in 
Virginia, where the national authority was overturned and the courts driven 
out, it does not follow that it should obtain in Indiana, where that authority 
was never disputed and justice was always administered. And so in the 
case of a foreign invasion, martial rule may become a necessity, in one State 
when in another it would be " mere lawless violence." 

It Avas against the attempted misapplication of martial law to 
the pacific State of Indiana and her citizens, on the ground of the 
existence of a state of actual war in other portions of the Union, 
but not extending into Indiana, that the thunderous eloquence and 
invincible logic of Garfield, Black, McDonald, and Mr. Justice Davis 
were directed. All of them admitted its proper application to the 
theater of actual war in the Southern States. 

During the greater part of the period of the Civil War the 
situation in most of the State of West Virginia was similar to that 
of Indiana. It was pacific territory though within the lines of a 
military district. Here, as in Indiana and elsewhere, there were 
abuses of military authority on a mere pretext of necessity, since 
there was no actual war in it, and the functions of the courts w^ere 
not obstructed. Acts and practices sanctioned by the principles 
of martial law, when applicable, were indulged in by the military 
officers and soldiers. This history was fresh in the recollections of 
the framers of the Constitution of 1872. The friends and relatives 
of delegates to that convention, and perhaps some of the delegates 



26 INSUEKECTIOlSr AND MARTIAL LAW. 

themselves, had been victims of such illegal acts. To give effect 
to the provisions of the National and State Constitutions in all 
pacific territory in a period of war as in time of peace closes the 
avenue of such abuses of power as that condemned in the Milligan case. 
That this was the evil the provision quoted in the dissenting opinion 
from article 1 of the Constitution was intended to remedy is made 
manifest by the conditions and experiences, in the light of which it 
was framed and adopted. Constitutional and statutory provisions 
are always to be interpreted in the light of the evils they were 
obviously designed to remedy, and do not, as a rule, extend beyond 
such purpose. No other rule of interpretation is more firmly estab- 
lished or more generally recognized. It is a rule of common sense. 

Nor do the terms of the section above referred to justify or sustain 
the broad view and claim for which it is cited. It makes no refer- 
ence to the theater of actual war. It does not say the constitutional 
j)rovisions shall be operative in invaded, insurrectionary, or rebel- 
lious portions of the State. It specifies times, not places, saying the 
provisions shall be operative (where they can operate) " alike in a 
period," not a place, " of war as in time of peace." In the preceding 
war the military authorities endeavored to make the existence of war 
in which the United States was engaged anywhere, though in a for- 
eign country, justification for martial rule, in any or every part of 
the country, no matter how thoroughly tranquil its condition or free 
and effective the administration of the laws. Surely the framers of 
this provision, having so recently witnessed the impossibility of the 
operation of constitutions, statutes, and other civil laws in areas of 
actual war, did not contemplate their operation in such places. We 
are not to presume they intended what they knew could not be. On 
the contrary, we naturally presume against intent to accomplish the 
impossible, in the absence of expression thereof. If the section said 
the constitutional provisions should be operative in places instead of 
periods of war, there would have been an expression of such intent; 
but the statesmen of 1872 knew what was needed as a relief from 
doubt as to the guaranties of life, liberty, and property in pacific 
territory in periods of war, and carefully selected apt words to ac- 
complish that purpose without destroying a sovereign power neces- 
sary to the preservation of those guaranties themselves. Section 3 
of article 1 is a declaration of a general principle, carried into effect 
by the more specific provisions referred to in the original opinion 
filed herein, declaring subordination of the military to the civil 
power, and inhibiting trial of citizens by military courts for offenses 
cognizable by the civil courts. Their purpose is to prevent such 
trials in tranquil territory in which the courts have free and unob- 
structed operation. In the areas of actual war, however occasioned, 
they do not have free course. Offenses committed there are not 
cognizable by the civil courts, because not within their reach, and if 
they are committed in aid or furtherance of the invasion, insurrec- 
tion, rebellion, or riot they are punishable by a military commission 
appointed for the trial thereof. 

The dissenting opinion confuses the occasion and conditions of a 
state of war with the suspension of the writ of habeas corpus. Dur- 
ing the troublous times of the Civil War there were attempted and 
actual suspensions of the writ in pacific portions of the country. 
That alone did not create war in -such territory and substitute mill- 



INSURRECTION AND MARTIAL LAW. 27 

tary for civil rule. It was an express suspension of the writ in 
tranquil territory and no more. As the power was abused, and its 
exercise Avrought injustice, it has been forbidden by the Constitution. 
But there is necessarily an informal and implied suspension in every 
instance of actual war throughout the field of military operations, as 
the opinion in the Milligan case and practically all other authorities 
admit. 

While the Supreme Court of North Carolina, in Ex parte Moore 
and others (64 N. C., 802), the opinion in which is quoted at great 
length in the dissenting opinion filed here, claimed the writ of habeas 
corpus ran in the theater of actual war, it confessed its inability to 
enforce it, expressly refusing rules and attachments against the mili- 
tary officer, in whose custody the petitioners were, and the governor, 
by whose direction and orders he held them and refused to obey the 
writ. The chief justice stated his fi^nal conclusion in the following 
terms : 

The second branch of the motion, that the power of the county be called out, 
if necessary, to aid in taking the petitioner by force out of the hands of Kirk, 
is as difficult of solution as the first. The power of the county, or " posse comi- 
tatus," means the men of the county in which the writ is to be executed — in this 
instance Caswell — and that county is declared to be in a state of insurrection. 
Shall insurgents be called out by the person who is to execute the writ to 
join in conflict with the military forces of the State? It is said that a sufficient 
force will volunteer from other counties. They may belong to the association 
or be persons who sympathize with it. But the " posse comitatus " must come 
from tlie count}' where the writ is to be executed ; it would be illegal to take 
men from other counties. This is settled law. Shall illegal means be resorted 
to in order to execute a writ? Again, every able-bodied man in the State be- 
longs to the militia, and the governor is by the constitution " commander In 
chief of the militia of the State." (Art. 3, sec. 8.) 

So the power of the county is composed of men who are under the 
command of the governor. Shall these men be required to violate, 
with force, the orders of their commander in chief, and do battle 
with his other forces that are already in the field? In short, the 
whole physical power of the State is, by the Constitution, under the 
control of the governor. The judiciary has only a moral power. By 
the theory of the Constitution there can be no conflict l)etween these 
two branches of the Government. The writ will be directed to the 
marshal of the Supreme Court, with instructions to exhibit it, and 
a copy of this opinion to his excellency, the governor. If he orders 
the petitioner to be delivered to the marshal, well ; if not, following 
the example of Chief Justice Taney, in Merriman's case (Annual 
Cyclopedia, for the year 1861, p. 555), I have discharged my duty. 
The power of the judiciary is exhausted, and the responsibility must 
rest on the executive. 

The writ having been delivered to the governor, he replied to it by 
a letter to the Chief Justice, in which, after reciting his proclamation 
of war in two counties of the State, and the terrible conditions neces- 
sitating such actioH, he said : 

Under these circumstances I would have been recreant to duty and faithless 
to my oath if I had not exercised the power in the several counties which your 
honor has been pleased to say I have exercised constitutionally and lawfully,, 
especially as, since October, 1S6S, I have repeatedly, by proclamations and by 
letters, invoked public opinion to repress these evils, and warned criminals and 
offenders against the laws of the fate that must in the end overtake them if, 
under the auspices of the Klan referred to, they should i>ersist in their course. 
I beg to assure your honor that no one subscribes more thoroughly than I do to 



28 INSUERECTION AND MAETIAL LAW. 

the great principles of habeas corpus and trial by jury. Except in extreme 
cases in which beyond all question " the safety of the State is the supreme law " 
these privileges of habeas corpus and trial by jury should be maintained. I 
have already declared that, in my judgment, your honor and all the other civil 
and judicial authorities are unable at this time to deal with the insurgents. 

The civil and the military are alike constitutional powers — the civil to protect 
life and property when it can and the military only when the former has failed. 
As the chief executive I seek to restore not to subvert the judicial power. 
Your honor has done your duty, and in perfect harmony with you I seek to do 
mine. It is not I or the military power that has supplanted the civil authority ; 
that has been done by the insurrection in the counties referred to. I do not 
see how I can restore the civil authority until I " suppress the insurrection," 
which your honor declares I have the power to do ; and I do not see how I can 
surrender the insurgents to the civil authority until that authority is restored. 
It would be a mockery in me to declare that the civil authority was unable to 
protect the citizens against the insurgents and then turn the insurgents over 
to the civil authority. My oath to support the Constitution makes it impera- 
tive on me to " suppress the insurrection " and restore the civil authority in the 
counties referred to, and this I must do. In doing this, I renew to j^our honor 
expressions of my profound respect for the civil authority, and my earnest 
wish that this authority may soon be restored to every county and neighborhood 
in the State. 

This was in July, 1870. On August 15, 1870, the governor again 
wrote the Chief Justice apprising him of the pacification of the two 
counties in question, and his readiness then to make return to the 
writ. In this letter he said : 

I assured your honor that as soon as the safety of the State should justify it 
I would cheerfully restore the civil power and cause the said parties to be 
brought before you, together with the cause of their capture and detention. 
That time has arrived, and I have ordered Col. George W. Kirk to obey the 
writs of habeas corpus issued by your honor. 

Thus the case relied upon, as denying power in a governor to 
declare a state of war in a county, declares exactly the opposite. 
Though denying power in the executive to do more than make arrests 
for civil offenses under an erroneous interpretation of constitutional 
provisions, the decision also admits lack of power to enforce them as 
thus construed and so runs to a palpable absurdity. The decision 
was later interpreted by Justice Dick of the same court, the chief 
justice and Justice Settle being present, upon applications for bench 
warrants against the governor and his subordinate officers, as har- 
monizing with the views of this court on the main proposition in- 
volved. Justice Dick said : 

The constitution and laws of the State authorize and empower the governor 
to organize and use the military forces of the State to suppress insurrection, 
etc., and the judiciary have no jurisdiction to arrest the governor while acting 
in that capacity for any alleged transcending of his authority in the discharge 
of executive duties. " The legislative, executive, and supreme judicial i^ower of 
the Government ought to be forever separate and distinct from each other." 
(Const., art. 1, sec. 8.) Each of these coordinate departments has its appro- 
priate functions, and one can not control the action of the other in the sphere 
of its constitutional power and duty. The government was formed for the 
benefit of all the citizens of the State, and it would be of little force and effi- 
ciency if the governor, in whom is vested the supreme executive power of the 
State, could be arrested and thus virtually deposed by a warrant from the 
judiciary issued upon the application of an individual citizen for alleged excess 
of authority in the performance of what the governor may consider his execu- 
tive functions. * * * Tj^e governor is not above the law. He is as much 
subject to its obligations and penalties as the humblest citizen. But the con- 
stitution provides a court of impeachment as the proper forum for the trial of 
the governor for any abuse of executive power. After he is deposed or his term 



INSURRECTION AND MARTIAL LAW. 29 

of office expires he is liable to indictment and puuishment for such violations of 
the laws of the State during his term of office. * * * 

The only difference we have as to the other parties included in the applica- 
tion of the affiant is whether we have authority to issue a warrant which can 
be executed in the insurrectionary counties of Alamance and Caswell against 
the military officers of the governor. The laws of the State authorize the gov- 
ernor under certain circumstances to declare a county or counties in a state 
of insurrection and call out the militia to arrest insurgents, etc. See the opin- 
ion of Chief Justice Pearson in the case of A. G. Moore and others. This is a 
discretionary power vested in the governor by the constitution and laws of 
the State and can not be controlled by the judiciary; but the governor alone is 
responsible to the people for its proper exercise. The laws upon this sub- 
ject would be virtually repealed, and the powers of the governor rendered wholly 
ineffectual, if it could be stopped or impeded by the judiciary upon the applica- 
tion of insurgents, the friends and sympathizers of insurgents, or other per- 
sons. We have nothing to say as to the policy of the law ; as judges we can 
only consider its legal effect. * * * \ve are of the opinion that we have 
no authority to issue a bench warrant to the insurrectiouai-y counties of 
Alamance and Caswell against the military officers and agents of the governor 
while they are acting under his orders in suppressing the insurrection. Outside 
of the insurrectionary districts they may be arrested, as the powers of the 
court are in full force there. The motion for a bench warrant against G. W. 
Kirk, G. W. Burgen, and Alexander Ruffin is allowed. The warrants will be 
directed to the sheriff" of Wake County, to be executed in any part of the 
State except the counties of Alamance and Caswell. 

We hold the governor's determination of the justification or 
necessity for proclamation of a state of war is not reviewable. So 
the decision, relied upon in the dissent, holds. We hold the writs 
of the courts do not run in the war area or district under martial 
law. So that decision holds. We hold the courts can not arrest the 
arm of the executive engaged in the suppression of an insurrection. 
So that case holds. That court endeavored to enforce the view that 
the nonsuspension clause relating to the writ of habeas corpus limits 
the power of the executive in the insurgent district to the making of 
arrests and immediate delivery of the prisoners to the civil authori- 
ties, but admitted lack of power to enforce that view, and said, as 
we say, the governor was beyond the power of the judiciary and 
responsible only to the people for his actions in the insurrectionary 
district declared to be in a state of war. 

Recurring to the argument founded upon recent observation and 
experience in the Civil War at the date of the adoption of the con- 
stitution, we find further and decisive refutation thereof in a consti- 
tutional provision and a statute not referred to in the original opin- 
ion. Section 1 of chapter 14 of the code of 1808, in force at the date 
of the adoption of the constitution of 1872, authorized the use of the 
militia to repel invasion and suppress insurrection, and also to sup- 
press any combination in any part of the State too powerful to be 
suppressed by ordinary judicial proceedings, endangering the peace 
and safety of the people or obstructing the execution of the laws. 
Section 6 of the same chapter authorized him to cause to be appre- 
liended and imprisoned or compelled to leave the State all who in 
lime of war, insurrection, or public danger should willfully give aid, 
support, or information to the enemy or insurgents, or who he shall 
have just cause to believe are conspiring or combining together to aid 
or support any hostile action against the United States or this State. 
Sections 7, 8, and 9 of that chapter show he was not limited in the 
means by which to exercise this power to the civil or judicial process 



30 INSUREECTION AND MAETIAL LAW. 

of the State. He was to act upon his OAvn judgment and select his 
own method of procedure. Section 21 of article 8 of the constitution 
contained this provision : 

Such parts of tbe common law and of the laws of his State as are in force 
when this article goes into operation and are not repugnant thei'eto shall be 
and continue the law of the State until altered or repealed by the legislature. 

It never occurred to the legislature of 1872, composed largely of 
the men who drafted the constitution of that year and aided in its 
adoption, nor to any other subsequent one, that the provisions of 
chapter 14 of the code of 1868 were repugTiant to article 8, for they 
were not repealed then, while the constitutional purposes were fresh 
in the minds of our statesmen, nor have the large powers there given 
to the governor ever been taken away. On the contrary, they were 
reenacted in 1882 and still remain in the code, amplified by sections 
54 and 92 of chapter 18 of the code. None of the laws in force then 
were deemed to be repugnant to a.nj of the provisions of the consti- 
tution relied upon by the petitioners or in the dissenting opinion, 
for none of them are in article 8, and that article continued in force 
all laws not repugnant to it, among them all the laws authorizing the 
governor to use the military forces for the purposes and in the man- 
ner in which they were used or could have been used previously under 
the war constitution of 1863. 

An article prepared by Judge Advocate General of the United 
States Army Norman G. Lieber, relied upon in the dissenting opin- 
ion, like the decision in the Milligan case, deals exclusively with 
rights and powers in pacific territory not in the theater of actual war. 
He begins by naming the four kinds of military jurisdiction: (1) 
Regulation of the army; (2) military rule in an enemy's territory 
during occupation thereof; (3) military power in time of war, insur- 
rection, or rebellion over persons in the military service as to obliga- 
tions arising out of such emergency and not falling within the do- 
main of military law nor otherwise regulated by law, an application 
of the doctrine of necessity, founded on the right of national self- 
j;reservation ; and (4) martial law at home or as a domestic fact, by 
which is meant military power exercised in time of war, insurrection, 
or rebellion in parts of the country retaining allegiance. He then 
says : 

It is to this last-mentioned kind of military jurisdiction that these remarks 
apply. 

Though he thus expressly says he is not discussing the exercise or 
limits of military power in the theater of actual war, insurrection, or 
rebellion, but only the limits of such power in parts of the country 
retaining allegiance, necessarily tranquil coimtr}^, the dissenting opin- 
ion takes no notice of the subject of discussion and treats his observa- 
tions as applicable to powers and transactions in insurrectionary 
territory officially declared to be in a state of war. This is a palpable 
oversight or misapprehension of the true meaning of his observations 
and citations of authority. His quotation from the opinion in Luther 
V. Borden (7 How., 1 ; 12 L. Ed., 584) shows this. We read: 

In relation to the act of the legislature declaring martial law, it is not neces- 
sary in the case before us to inquire to what extent nor under what circum- 
stances that power may be exercised by a State. Unquestionably a military 
government, established as the permanent government of a State, would not be 
a republican government, and it would be the duty of Congress to overthrow it. 



INSURRECTION AND MARTIAL LAW. 31 

Rut the law of Rhode Isliind evidently contemplated no such government. It 
was intended merely for the crisis and to meet the peril in which the existing 
government was placed by the armed resistance to its authority. It was so 
understood and construed by the State authorities. And unquestionably a State 
may use its military power to put down an armed insurrection too strong to be 
controlled by the civil authority. The power is essential to the preservation of 
order and free institutions and is as necessary to the States of this Union as 
to any other government. The State itself must determine what degree of force 
the crisis demands. And if the government of Rhode Island deemed the armed 
opposition too formidable and so ramified throughout the State as to require 
the use of its military force and the declaration of martial law, we see no ground 
upon which this court can question its authority. It was a state of war, and 
the established government resorted to the rights and usages of war to main- 
tain Itself and to overcome the unlawful opposition. 

Having quoted this, Gen. Lieber said : 

In regard to this case, it is deserving of ])articular notice that it is an error 
to rely on it in ju-oof of tbe theory that Congress has the power to declare mar- 
tial law in the sense in which we have been using that term. It is true that 
this was a case of so-called martial law declared by the legislature; but what 
did the legislature mean by it? The term has no fixe;l meaning, even at the 
present day. Different writers still give it different meanings. When the Legis- 
lature of Rhode Island made use of it in 1842, it probably was intended to have 
no more definite meaning than that the militia of the State was to use its mili- 
tary power to suppress the enemies of the State. It was an authorization to do 
what was done when the military officer broke into the house of one of the ene- 
mies of the State in order to arrest him. He was a public enemy against whom 
the military power had been called out. It is evident that this is not the kind 
of martial law which we have been discussing. 

In the' face of the declaration by the Supreme Court of the United 
States, above quoted, it is argued that a State can not declare a state 
of war and adopt the usages of war in the suppression of an insur- 
rection, because the National Government may be summoned to the aid 
of the State in its efforts to uphold and enforce its authority. As the 
court in Luther v. Borden plainly says, that national obligation and 
right is in aid of the State government, not in exclusion thereof. It 
was never intended that the Federal Government should assume 
the duties of State government, nor reduce the State to a condition of 
dependence upon the discretionary exercise of Federal power re- 
specting the maintenance of its authority within its own territory not 
in conflict Avith the limitations of the National Consitution upon the 
powers of the States. The Federal Government assumed no obliga- 
tion to do for the States what they can do for themselves, nor laid 
any restraint upon their sovereign powers, excejjt in certain instances 
or for the accomplishment of entimerated Federal purposes. Ob- 
serve that Judge Cooley said, in the quotation found in the dissent- 
ing opinion, this article of the National Constitution is an " acquisi- 
tion of strength and additional force to the aid of any State gov- 
ernment." Why should we be asked to read this as if it said " to 
the exclusion of the powers of any State government ? " 

Prof. Ballantine, like Gen. Lieber, was discussing the exercise of 
military power in pacific territory, as a careful reading of the quota- 
tion from him shows. He is merely stating the doctrine of the Milli- 
gan case. Franks v. Smith, cited by him, did not arise under a proc- 
lamation of war. John.son v. Jones and Ela v. Smith are cited by 
him against authority of the governor without legislative sanction 
to declare war. Here we have both legislative and express consti- 
tutional authority in the governor to do so. The quotations from 
Gen. Garfield, Gen. Norman. Prof. Ballantine. David Dudley Field, 
tjnd others are not judicial expressions, even if they related to the 



32 INSURRECTION AND MARTIAL LAW. 

question here involved ; but, worse yet, they have no application to the 
question. 

Another distinction not marked nor indicated in the dissenting 
opinion runs through much of the mass of quoted matter therein from 
public writers. That is the distinction between the power to do an 
act and liability for a wrong done in the exercise of that power. 
We have in this case nothing to do now with claims for damages for 
wrongs done by the executive officers in the exercise of their powers. 
The opinions in the North Carolina case, relied upon in the dissenting 
opinion, not quoted therein but quoted here, mark this distinction 
plainly. While the executive and his subordinate officers are engaged 
in the suppression of an insurrection, there is no power in the courts 
to restrain them, though there may be, after the war is over, a right 
of action for damages for some wrongful act, done in the exercise of 
the power. This principle applies in other relations. If a man has 
land leased for certain purposes, and in carrying on those purposes 
he does some wrongful act, he is liable for the wrong done, but that 
liability does not defeat his right to the use of the land. Under our 
tax laws land may be sold for the nonpayment of taxes, and there 
may be a right, because of some error or violation of law, to avoid 
the sale; but, notwithstanding, the law gives no remedy to stop the 
sale by injunction or otherwise. Quotations of law, applicable to the 
question of liability for wrongs done in the exercise of executive 
power, are wholly inapplicable to the question of the power of the 
court to stop, restrain, or interfere with the exercise thereof, and they 
are therefore misleading and confusing. 

There are many instances in which private right or interest must 
be subordinated to and compelled to await the accomplishment of 
great public purposes. 

Members of the legislature shall, In all cases except treason, felony, and 
breach of the peace, be privileged from arrest during the session, and for 10 
days before and after the same ; and for words spoken in debate, or any report, 
motion, or proposition made in either house, a member shall not be questioned 
in any other place. (Const., art. 6, sec. 17.) 

The following persons shall also be privileged from arrest under civil process, 
except for an escape, to wit: A judge, grand juror, or witness, required by law- 
ful authoi-ity to attend at any court or place, during such attendance and while 
going to and from such court or place; officers and men, while going to, attend- 
ing at, and returning from any muster or court-martial which they are lawfully 
required to attend ; persons attending funerals and ministers of the gospel while 
engaged in performing religious service in a place where a congregation is 
assembled and while going to and returning from such place. Such privilege 
shall only be on the days of such attendance, and an additional day for every 
20 miles traveled in going and returning. (Code 1906, ch. 41, sec. 14.) 

No civil process or order shall be executed on Sunday, except in cases of per- 
sons escaping from custody, or where it may be especially provided by law. 
(Code 1906, ch. 41, sec. 15.) 

These provisions rest upon the obvious physical necessity, in Gov- 
ernment as elsewhere, even at post offices, railway stations, hotels, on 
highways, and in mountain passes, of the observance of order as to 
time, place, and methods of procedure. 

Aside from the argument of presumption against the destruction 
or abolition of a high sovereign power by mere implication, the terms 
of section 12 of article 7 of the constitution may be invoked. This 
section confers power upon the governor in express terms to — 

call out the military forces of the State * * *, to execute the laws, suppress 
insurrection, and repel invasion. 



IISrSURRECTION AND MARTIAL LAW. 33 

Here is a constitutional grant of express power to " suppress insur- 
rection," without limitation or prescription of the mode of exercise 
thereof. That grant, according to settled rules of interpretation 
recognized everywhere, carries with it, by implication, all means 
reasonably necessary to effective exercise of the power. Under other 
rules it carries such power and means as are included in the term 
" suppress insurrection," as defined in law. They are defined in law 
by the authorities relied upon in the dissenting opinion, and all others, 
as including the right to apply martial law in an insurrectionary 
area. It has been so understood in all countries and in all ages. So 
all departments of the Federal Government understood and applied 
it in the War of 1812 and the late Civil War. 

The oonstructiou given to a statute by those chargeil with the duty of execut- 
ing it ought not to be overruled without cogent reasons. The popular or received 
import of words furnishes the general rule for the interpretation of public laws 
as well as of private and social transactions. * * * when words in a statute 
have acquired through judicial interpretation, a well-understood legislative 
meaniixg. it is to be presumed they were used in that sense in a subsequent 
statute on the same subject, unless the contrary appears. (Daniel r. Simms, 40 
W. Ya., 554; 39 S. E., 690, pts. 6, 7, and S, syllabus.) 

These rules are just as applicable in the interpretation of constitu- 
tional provisions as in that of statutes. This express grant of power 
to the executive necessarily destroys all such supposed implications as 
are relied upon in the dissenting opinion. 

That to justify the application of martial rule to a territory or 
section of a State the courts thereof must be wholly closed and in- 
operative is not sustained by the authorities cited in the dissenting 
opinion. Some passages in the opinion in the Milligan case seem to 
say so, but others say the contrary. The court based its position on 
its judicial knowledge that — 

in Indiana the Federal authority was always unopposed and its courts always 
open. 

And — 

their process unobstructed. 

The opinion says: 

After this military tribunal was ended the circuit court met. peacefully 
transacted its business, and adjourned, * * * recpiired no military aid to 
execute its judgments, * * * and was never interrupted. 

The opinion also says that on the theater of active military opera- 
tions where war really prevails — 

there is necessity to furnish a substitute for the civil authority, * * * and 
it is allowed to govern by martial law until the laws can have their free 
course — 

and that — 

martial rule can never exist where the courts are open and in the proper and 
unobstructed exercise of their jurisdiction. 

Having spoken of open or unobstructed courts having free course 
as precluding martial law, and overthrown, obstructed, or inter- 
rupted courts as justifying it, shall we not take the opinion as hav- 
ing stated just what the court meant? How else may we logically 
and sensibly interpret its language? Can we say it meant only 
one of several different things mentioned as producing the same 

S. Doc. 43, 63-1 3 



34 INSUEKECTION AND MARTIAL LAW. 

effect? No doubt they meant just what Mr. J. S. Black, the ablest 
of Milligan's counsel, and the greatest lawyer in the case, said of 
the general plan of our constitutional government in his argument: 

Military force repels invasion and suppresses insurrection ; you preserve 
discipline in the Army and Navy by means of courts-martial; you preserve 
the purity of tlie civil administration by impeachment of dishonest magistrates ; 
and crimes are prevented and punished by the regular judicial authorities. 

Of trials by military commissions in the war areas he said : . 

I have made no allusion to their history in the last five years. But what 
can be the meaning of an effort to maintain them among us? 

This was an admission of their validity in the theater of war and 
their invalidity in pacific territory. Milligan did not apply for his 
writ until after the close of the war, and it was not decided until 
December, 1866. A sitting court, whose process is obstructed by 
insurrectionary force, is in a practical sense no court and might as 
well be " closed " or " overthrown." 

In dealing with grave questions such as this we must govern 
ourselves by settled rules and principles of law, including the rules 
of construction and interpretation. It is not permissible to set aside 
or ignore them in trivial cases. The greater the moment of the 
question or matter involved, the greater the reason for strict ad- 
herence to law and observance of distinctions in the application of 
principles and precedents. 



In the Supreme Court of Appeals of West Virginia. 

IN KE MARY JONES, IN EE CHAS. H. BOSWELL, IN EE 
CHAELES BATLEY, IN EE PAUL J. PAULSON. 

Submitted February 20, 1913. Decided March 21, 1913. 

1. The principles and eonclnsions of law announced in State ex rel. Mays v. 

Brown, warden, and State ex rel. Nance v. Brown, warden, having been 
reexamined, after tliorougli argument and consideration, are approved 
and reaffirmed. 

2. A state of war Liaving been declared in any part of the State on an occasion 

of insurrection, tlie war power of the State in the form of military rule, 
defined by the usages of nations, prevails in the territory subject to the 
proclamation, excluding the civil powers as to offenses, if the executive 
so order, while the peace powers of government under civil law prevail 
elsewhere. 

3. In such case the governor may cause to be apprehended in or out of the 

military zone all persons who shall willfully give aid, support, or infor- 
mation to the insurgents and detain or imprison them pending the sup- 
pression of the insurrection. 

4. Sections 6, 7, 8, and 9 of chapter 14 of the code, authorizing such arrest and 

imprisonment, do not violate the provisions of the State and Federal 
Constitutions inhibiting deprivation of liberty without a trial by jury 
and are constitutional and valid. 

5. Being so, such arrest, detention, and imprisonment, by virtue of said statute, 

are effected by due process of law within the meaning of section 10 of 
Article III of the constitution of this State and the fourteenth amend- 
ment to the Constitution of the United States. '^ 

A. M. Belcher and Harold W. Houston, for petitioners. 

William G. Conlej^, attorney general; J. 0. Henson, assistant 
attorney general; George S. Wallace, Brown, Jackson & Knight; 
and Price, Smith, Spilman & Clay, for respondent. 

Statement by Poffenbarger, president: 

On the petitions of P. J. Paulson, C. H. Boswell, Charles Batley, 
and Mary Jones, alleging their confinement in a military guardhouse 
in the town of Pratt by the military authorities of the State, acting 
under the orders of the governor : a proclamation by th^ governor 
of a state of war in the territory in which the said military guard- 
house is, a portion of Kanawha County; the organization of a mili- 
tary commission to sit and act in said district for the trial of such 
persons as may properly be brought before them ; their apprehension 
of petitioners in said county outside of said military district, by 
a civil officer, on complaints filed with a justice of the peace charg- 
ing them with a conspiracy to inflict bodily injury upon sundry 
persons unknown to the complainant and to destroy and injure 
personal property not their own and the killing of one Fred Bobbitt 
in pursuance of said conspiracy ; and their delivery by said officer 
to the said military authorities by the verbal order of the governor ; 
writs of habeas corpus were issued, directed by the governor, the 

35 



36 INSUEEECTION AND MAKTIAL LAW, 

adjutant general of the State, and the members of the military com- 
mission, commanding them forthwith to produce the bodies of the 
relators. 

The returns to the writs admit the arrests and detention com- 
plained of, the filing against the petitioners of charges and specifica- 
tions prepared by the provost marshal, charging each of them Avith 
having conspired with numerous other persons to inflict bodily injury 
upon one Thomas Nesbit, and, in pursuance to such conspiracy, with 
having shot him with intent to maim and disfigure, disable, and kill 
him, on or about the 10th day of February, 1913, within the district 
covered by the governor's proclamation of war; with having mur- 
dered one Fred Bobbitt and one W. H. Vance within said district on 
or about the said date; with having otherwise conspired for such 
purposes and in such manner, and so far executed such conspir- 
acy as to render them guilty of felonies under what is known as 
the " Red Men's act " ; with having become accessories after the fact 
to the alleged murder of Fred Bobbitt by the rendition of aid to the 
principal felons in their efforts to escape ; and Avith having unlaAvfully 
carried concealed weapons. 

The arrest of the prisoners outside of the military district by a civil 
officer and conveyance of them into the military district are ad- 
mitted, but it is denied that they were arrested Avithout a Avarrant, 
and also that they were carried into the military district by the direc- 
tion of the governor or any of the military authorities under his con- 
trol. An the contrary, it is aA^erred that a warrant Avas issued on the 
complaint of a citizen and the arrest made under the Avarrant, and 
that they were couA^eyed into the military district by the order of 
the justice of the peace to Avhom the Avarrant was returnable. The 
returns also cleniecl any fixed purpose or determination on the part 
of the military commission to try and convict the petitioners and 
say the charges preferred against them have not yet been inquired 
into. AA^erring the arrests to haA^e been made Avithin the military dis- 
trict and denying them to have been made in pacific territory, they 
say the prisoners were arrested in said district during a time of in- 
surrection, riot, or lawlessness in Avhich insurrection, riot, or laAAdess- 
ness the petitioners were then participating. 

As the basis of three successive proclamations of Avar in practically 
the same territory, all within less than a year, they set forth large 
amounts of information collected by the governor and military forces^ 
showing a reign of terror, characterized by pitched battles betAveen 
miners and mine guards, Avith long-range and deadly rifles and ma- 
chine guns, in which numerous persons have been killed and a great 
many others wounded, and a vast amount of property destroyed. In 
connection with this, records and papers of the ciAal authorities are 
produced indicating their utter inability to cope Avith the situation. 
Summarizing the conditions, the returns say : 

Respondents are informed and belieA'e, and so aver, tliat i)nb]ie sentiment in 
Kanawha County is so diAdded and partisan feeling so universal tliat it is im- 
possible to procure a jury in said county, as prescribed by Ihav, to impartially 
try criminal cases against active participants in tliis industrinl struggle. Your 
respondents are informed and believe, and so aver, tliat approximately 30,000 
shots have been exchanged during the existence of this Avarfare, that 16 men are 
known to have been killed, and your respondents are informed and believe, and 
so aver, that the actual number of dead will in all probability reach 50 or more. 



INSURKECTION AND MARTIAL LAW. 37 

Of the part played by the petitioners in the uprising, each of the 
returns says : 

Your respondents are infornie<l and believe, and so aver, tlmt the petitioner 
has been larj^ely instrumental in causing and encouraging the lavsiessness, riot, 
and insurrection now prevalent in the aforesaid territory, and that the deten- 
tion of the jjrisoner is, in their judgment, necessary in order to effectually sup- 
jiress (he lawlessness, insurrection, and riot which occasioned the proclamation 
of martial law. 

The bodies of the petitioners having been produced, the cases were 
submitted on demurrers to the petitions and motions to quash the 
same, demurrers to the returns and motions to quash them, and gen- 
eral replications. Affidavits of the justice with wdiom the complaints 
were tiled and by whom the warrants were issued, and the prosecuting 
attorney of the county, filed in support of the returns, show that the 
iormer, by direction of the latter, ordered the officer by whom the 
arrest had been made to carry the j^risoners into the military district. 
To show the existence of the grounds upon which the prosecuting 
attorney gave this direction, he states his knowledge and information 
as to the lawless conditions prevailing in the military district, the 
declaration of martial law and a state of war therein, summarizes 
many of the matters set forth in the returns, narrates the details of 
ilie uprising of February 7, 1913, in the course of which Vance and 
Bobbitt were killed, and gives it as his belief and opinion that the 
military commission has jurisdiction of the offense with which the 
parties are charged, and also that justice can not be administered 
to them in the civil courts of the county, because of inability to obtain 
the testimony of the witnesses, since they reside in the military dis- 
trict where lawlessness obtains, producing a state of fear and intimi- 
dation. As to this point, the affidavit saj^s: 

Martial law has been three times declared in portions of said comity; 

* * * owing to the terror and intimidation created by this state of affairs, 
practically without exception it lias been impossible during all of the period 
aforesaid to secure the apprehension and indictment of the guilty parties in 
any of these crimes, even in the periods when martial law did not prevail; 

* * * while the lawlessness and crimes have been principally, though not 
entirely, confined to the district now under martial law. the disturbance thereof 
has extended to other parts of the county to such an extent that the civil courts 
have been and are virtually closed for the punishment of crimes committed in 
the district now under martial law. 

An affidavit of the sheriff of the county, filed, contains the fol- 
loAving : 

Afliant has read the affidavit of T. C. Townsend, and concurs in the state- 
ment therein c(nitained of the lawlessness and disorder and conditions generally 
prevailing in said county during many months past, and in the opinion of said 
Townsend that for the reasons stated in said affidavit it has been and is 
impossible to administer justice in the civil courts to persons for offenses com- 
mitted in the district now under martial law, and that the civil courts are vir- 
tually closed for the punshment of crimes which have been committed in said 
district during the disturbances mentioned in the affidavit of said Townsend. 

An affidavit of Ira Mottesheard, clerk of the circuit and interme- 
diate courts of Kanawha County, filed by the petitioners, says that 
so far as affiant knows the writs and process of said courts have not 
been obstructed or the service of the same prevented or hindered in 
anj^ part of the said county; that at the present time he has no knowl- 
edge of any obstruction of the service of the process of the said 



38 iisrsuKRECTioisr and maetial law. 

court; that both of said courts have, during the entire time he has 
served as such clerk, regularly convened as provided by law at the 
courthouse of said county, in the city of Charleston ; that at no time 
has it been interrupted or impeded by any act of violence, rioting, 
or other cause in any part of said county, and that at the date of the 
affidavit the courts were in session at the courthouse of said county 
and wholly unobstructed in their proceedings. An affidavit of the 
same officer, filed by the respondents, says that immediately preced- 
ing or during the time martial law has been in effect, in so far as he 
recalls, no writs of any kind or character were issued by the courts of 
which he is clerk directed to be served within the territory covered by 
martial law. 

OPINION. 

PorrENBARGER, Presi dent : 

Except in so far as they pertain to the arrest of the petitioners out- 
side of the military district and their conveyance into it, the affidavits 
filed relate to conditions and circumstances relied upon as justifica- 
tion of the declaration of a state of war in the military district, and 
the argument for the most part deals with the main questions dis- 
posed of in Ex parte Nance and Mays, recently decided by this court. 
Here, as in those cases, certain constitutional provisions are relied 
upon as authority for the position that in the exercise of the consti- 
tutional and statutory power to suppress insurrection and repel 
invasion the governor can not declare a state of war and apply mili- 
tary rule, and that citizens arrested in the exercise of that power 
must be immediately turned over to the civil authorities for inquiry 
as to their guilt of the offenses of which they are accused and for 
trial by the civil courts when there is probable cause to believe them 
guilty. 

Nance and Mays had been tried by a military commission for 
offenses committed within the military zone and sentenced to terms 
in the penitentiary, and they sought liberation by writs of habeas 
corpus. To the extent of the claim of right in the governor to im- 
prison them pending the proceedings to suppress the insurrection 
the court sustained him. The conclusion is summarized in the fol- 
lowing terms: 

Oui- present inquiry goes only to tlie legality of the custody of the respondents 
at the present time and under the existing conditions. The territory in which 
the offenses were committed is still under martial rule. It suffices here to say 
whether the imprisonment is under present conditions authorized by law, and 
we think it is. We are not called upon to say whether the end of the reign of 
martial law in the territory in question will terminate the sentences. Upon 
that question we express no opinion. 

As a premise to this conclusion, the ]Dower of the governor to de- 
clare a state of war. to use the military forces to suppress insurrec- 
tion or rebellion or repel invasion, and to establish a military com- 
mission for the punishment of offenses committed within the military 
zone and by its judgment impose imprisonment, notwithstanding the 
constitutional guaranty of subordination of the military to the civil 
power, the privilege of the writ of habeas corpus and the right of 
trial by jury in the civil courts for offenses cognizable by them, 
and the conclusiveness of the executive declaration of a state of war, 
were asserted. The power and authority of the court to interfere 
with the executive arm under such circumstances was denied. We 



INSUREECTION AND MARTIAL LAW. 39 

also held and asserted this right and power in the executive as to a 
city, district, or county of a State, notwithstanding the courts were 
open and sitting in otiier portions of the county. But there was no 
attempt in the opinion filed in these cases to define or enumerate the 
offenses cognizable by the military commission or the extent of the 
punishments it may inflict. "We were careful to say there were limits 
beyond which the executive could not go without subjecting himself 
or his ofiicers and men to rights of action for damages on the restora- 
tion of peace and tranciuillity. We marked the distinction between 
executive power and the possibility of Avrongdoing in the exercise 
thereof. 

A reexamination of the opinion in those cases, in the light of fur- 
ther argument and additional authorities consulted, has developed no 
reason or cause for departing from the conclusions and principles 
there announced. On the contrary our impression as to the basic 
principles of that decision has been strengthened and confirmed. 
Considering the constitution as a whole and endeavoring to give 
effect to all of its parts, we asserted power to set aside and ignore, to 
some extent, in the suppression of an insurrection, ordinary judicial 
process and remedies. The provisions of our constitution relied upon 
as being inconsistent with this conclusion are perhaps no broader 
nor more positive in their terms than some of those of the Federal 
Constitution, binding on the State courts as Avell as the Federal. 
Power in the Federal Government to establish military rule and mar- 
tial law over citizens as well as persons belonging to its land and 
naval forces and the militia engaged in its service, in enemy territory, 
whether in a foreign country or in sections of the Union in a state of 
insurrection or rebellion, is established beyond question. 

During the occupation of the city of New Orleans by the military 
authorities and forces in the late war. Gen. Dow was sued in a 
municipal court by one Bradish Johnson for the value of certain 
property, 25 hogsheads of sugar, a silver pitcher, half a dozen silver 
knives, and other tablcAvare, taken by Capt. Snell's company under 
the command of Gen. Dow. The defendant did not appear nor make 
any defense and there was a judgment against him by default. After 
the war, a suit was brought on this judgment in the Circuit Court of 
the United States for the District of Maine, and the question of the 
validity of that judgment was certified to the Supreme Court of the 
United States. The court held that the State court had no jurisdic- 
tion of the cause of action, and that the judgment was void. Deliv- 
ering the opinion of the court, Mr. Justice Field said : 

This doctrine of nonliability to the tribunals of the invarled country for acts 
of warfare is as ajiplicable to members of the Confederate Army, when in Penn- 
sylvania, as to members of the National Army when in the insur.sent States. 
The officers or soldiers of neither army could be called to account civilly or 
criminally in these tribunals for such acts, whether those acts resulted in the 
destruction of property or the destruction of life; nor could they be required by 
those tribunals to explain or justify their conduct upon any averment of the 
injured party that the acts complained of were unautliorized by the necessities 
of war. * * * We fully agree with the presiding justices of the circuit court 
in the doctrine that the military should always be kept in subjection to the laws 
of the country to which it belongs, and that he is no friend to the Republic who 
advocates the contrary. The established principle of every free people is. that 
the law shall alone govern and to it the military must always yield. We do 
not controvert the doctrine of Mitchel v. Harmony, reported in the Thirteenth 
of Howard; on the contrary, we approve it. But it has no application to the 
case at bar. The trading for which the seizure was there made had been per- 



40 iisrsuEKECTioisr and maktial law. 

mitted by the executive department of our Government. The question here is, 
what is the law which governs an army invading an enemy's country? It is 
not the civil law of the invaded country ; it is not the civil law of the conquering 
country; it is military law — the law of war — and its supremacy for the pro- 
tection of the officers and soldiers of the army, when in service in the field in 
the enemy's country, is as essential to the efficiency of the army as is supremacy 
of the civil law at home, and in time of peace is essential to the preservation 
of liberty. 

In United States v.^ Diekelman (92 U. S., 520), Mr. Chief Justice 
Waite, speaking of Diekelman, commander of a foreign vessel, suing 
for damages on account of detention by Gen. Butler in the port of 
New Orleans, said : 

When he entered the port, therefore, with his vessel, under the special license 
of the proclamation, he became entitled to all the rights and privileges that 
would have been accorded to a loyal citizen of the United States under the same 
circumstances, but no more. Such restrictions as were placed upon citizens, 
operated equally upon him. Citizens were governed by martial law. It was 
his duty to submit to the same authority. Martial law is the law of military 
necessity in the actual presence of war. It is administered by the general of 
the army, and is in fact his will. Of necessity it is arbitrarj^ ; but it must be 
obeyed. New Orleans was at this time the theater of the most active and 
important military operations. The civil authority was overthrown. Gen. But- 
ler, in command, was the military ruler. His will was law, and necessarily so. 

Dow V. Johnson, cited, shows that then the municipal courts of 
New Orleans were open by permission of the commanding general. 
In Dooley v. United States (182 U. S., 222), Mr. Justice Brown 
quoted with approval the following from Halleck in his w^ork on 
International Law : 

The right of one belligerent to occupy and govern the territory of the enemy 
while in its military possession, is one of the incidents of war, and fiows directly 
from the right to conquer. We, therefore, do not look to the Constitution or 
political institutions of the conqueror for authority to establish a government 
for the territory of the enemy in possession during its military occupation, nor 
for the x'ules by which the powers of such government are regulated and 
limited. Such authority and such rules are derived directly from the laws of 
war, as established by the usage of the world, and confirmed by the writings of 
publicists and decisions of courts — in fine, from the law of the nations * * *. 

The municipal laws of a conquered territory, or the laws which regulate 
private rights, continue in force during military occupation, except so far as 
they are suspended or changed by the acts of the conqueror. * * * He, 
nevertheless, has all the powers of a de facto government and can, at his 
pleasure, either change the existing laws or make new ones. 

This was said of an American military commander operating in 
the island of Porto Kico during the Spanish-American War. The 
same court, in New Orleans v. Steamship Co. (20 Wall., 387), de- 
clares the same law applicable in domestic territory in a state of re- 
bellion. Of the power of the military government over the city of 
New Orleans, after this conquest, the court said the military govern- 
ment had — 

the same power and rights in territory held by conquest as if the territory had 
belonged to a foreign country and had been subjugated in a foreign war. In 
such cases the conquering power has the right to displace the preexisting au- 
thority and to assume to such extent as it may deem proper the exercise by 
itself of all the powers and functions of government. It may appoint all the 
necessary officers and clothe them with designated powers, larger or smaller, 
according to its pleasure. It may prescribe revenues to be paid, and apply 
them to its own use or otherwise. It may do anything necessary to strengthen 
itself and weaken the enemy. There is no limit to the powers that may be 
exerted in such cases, save those which are found in the laws and usages of 
war. These principles bave the sanction of all publicists who have considered 
the subject. 



INSURRECTION AND MARTIAL LAW. 41 

This enunciation of principles was quoted by Mr. Justice Brown 
and approved by the United States Supreme Court in Dooley v. 
United States as late as the year 1900. 

Martial law is the temporary goverumeut and control by military anthority 
of territory in whicb, by reason of war or i)nl)lic distnrbance, the civil govern- 
ment is inadequate to the preservation of order and the enforcement of law. 
(40 Cyc, 387.) The proclamation of martial law establishes the will of the 
military commander as a rule of authority. His v^^ill, however, is not to be 
arbitrarily exercised, and it usually supersedes the local law only so far as 
necessary for the preservation of order, and, in case of invasion, the supremacy 
of the conqueror. (40 Cyc, 390.) 

The article from which these quotations are made was prepared 
as late as 1912 by George Grafton Wilson, professor of international 
law in Harvard University, lecturer on international law in Brown 
University, and in the United States Naval War College. Of the 
duration of martial law, he said : 

The duration of martial law is determined by the necessity which led to its 
establishment, and it therefore ceases as soon as the civil authorities are able 
to resume the unobstructed exercise of their ordinary functions. (40 Cyc, 319.) 

In the great contests in England over the interpretation of the 
unwritten constitution and to maintain its integrity and guarantees, 
this principle was admitted by the stoutest and most radical of the 
opponents to royal aggression and encroachment. Hear the admis- 
sion of Mr. St. John, counsel for John Hampden, in the Ship Money 
case: 

My Lords, from this objection of sudden danger I come to the next, which is 
the third thing before offered unto your lordships, which is an admittance that 
the danger may sometimes be such that the subjects' goods, sometimes without 
their consent, may be taken from them ; for pi'operty being both introduced and 
maintained by human l;iws, all things by the law of nature being common, 
there are therefore sometimes, like the Philistines being upon Sampson, wherein 
these cords are too weak to hold us. " Necessitae enim " (as Cicero saith) 
"magnum humauae imbecillitfitis omnem legem frangit ; " at such times all 
property ceaseth. and all things are again resolved into the common principles 
of nature. (State Trials, Vol. III. p. 903. Likewise Sir Edward Littleton for 
the King, p. 959.) In the next place they say if the king be in the field with his 
banners displayed; this they say wiis tempus belli. Can not the courts of 
justice sit, then, but there must be a peace? (39 Ed. 3 Rot., 10.) Did not the 
court of justice sit then? Our ordinary printed books shew what causes of 
law then were. And in Henry VI's time, in all of civil wars, and in Henry VII's 
time, they sat then. But the true time to make it tempus belli is to make a war 
against the king. 

Then the admission of Mr. Holborne, on behalf of Mr. Hampden 

(p. 975) : 

Now. in times of necessity there is a law that doth compel ; nay, there is a 
stronger penalty than our laws can imagine, for our laws can make but a 
penalty of all that you have, but how? To the King. But when tliei'e is a 
danger from an enemy there is not only a danger of losing all that one hath, 
but of losing lives and lands and all that we have, and all into the hands of the 
enemy. 

Sir George Crooke, justice of the Kings Bench, delivering his 
opinion in favor of Hampden and against the King, said (p. 1162) : 

Royal power, I account, is to be used in cases of necessity and imminent 
danger when ordinary courses will not avail, for it is a rule, " Non occurrendum 
est ad extraordinaria. quanda fieri potest per ordinaria," as in cnse of rebellion, 
sudden invasion, and some other cases where martini law may be used and may 
not stay for legal proceedings. But in a time of peace and no extreme necessity, 
legal courses must be used and not royal power. 



42 INSUERECTION AND MAETIAL LAW. 

Likewise Sir Eichard Hutton, of the court of common pleas, 
resolving against the King (p. 1198) : 

For I do agree -in the time of war, wtien tliere is an enemy in the field, tlie 
King may take goods from the subject ; sucli a danger and such a necessity ought 
to be in this case, as in case of a fire like to consume all without speedy help, 
such a danger as tends to the overthrow of the kingdom. 

Sir Humphrey Davenport, also advising in favor of Hampden, 
said (pp. 1214, 1215) : 

I hold it real that when any part of the kingdom is in danger, actually in 
danger, or in expectancy of danger, and the same expressed bj^ his writ, I agree 
the king may charge the subjects without parliament toward the defense 
thereof for " necessitas est lex temporis," in vain to call for help when the 
enemy is landed. Clearly I hold the King to be the sole judge of the danger. 
And the danger being certified by his majesty, I hold it not traversable ; and in 
such a case he may charge the subject without parliament, so that the very 
cause be effectually expressed upon the records, that the kingdom was in 
danger. 

An observation in Dicey's Law of The Constitution, recent work by 
an English author, at page 289, seems to deny such power to the 
British sovereign in England only, not elsewhere in the Kingdom, and 
cites as authority Wolfe Tone's case (27 St, Tr., 614). Tone was 
sentenced to death in Ireland by a military commission and com- 
mitted suicide before arrival of the time of execution. On the day 
set for execution, and before Tone died, Mr. Curran, his attorney, 
appeared in the King's Bench and applied for a writ of habeas corpus, 
which being granted, was ignored by the military officers. In apply- 
ing for the writ, Mr. Curran said (p. 625) : 

In times when war was raging, when man was opposed to man in the field, 
courts-martial might be endured ; but every law authority is with me while I stand 
upon this sacred and immutable principle of the constitution — that martial law 
and civil law are incompatible, and that the former must cease with the 
existence of the latter. 

Tone's case was like that of Milligan (4 Wall., 2). There was 
then no actual war nor proclamation thereof in Ireland. Tone had 
been captured at sea in a French vessel bound for Ireland on an 
expedition of invasion. By some authorities Wall's case (28 St. 
Tr., 51) is relied upon as being against the proposition laid down by 
the Federal Supreme Court. As commander of a garrison on the 
island of Goree, on the African coast, Wall had caused a soldier of 
his garrison to be beaten to death. That man's rights Avere governed 
by the general civil law and the British statutes relating to dis- 
cipline of the army. His rights were invaded in neither a time nor 
a place of war. Wall was convicted of murder on an issue as to 
whether he had acted in good faith under belief of the existence of a 
mutiny, headed by his victim, or on a mere pretext and with malice. 

But Mr. Dicey does not in fact deny the proposition. On the con- 
trary, he admits it and cautions the student against the danger of 
being misled by nonobservance of the different senses in which the 
term " martial law " is used. (See p. 384.) He says martial law in 
the proper sense is unknown to the law of England (p. 283). 
Then he says : 

Martial law is sometimes employed as a name for the common-law right of 
the Crown and its servants to repel force by force in the case of invasion, insur- 
rection, riot, or geneally of any violent resistance to the law. This right or 
power is essential to the very existence of orderly government and is most 
assuredly recognized in the most ample manner by the law of England (p. 284). 



INSUERECTION AND MARTIAL LAW. 43 

Thus Me find Mr. Dicey is merely denying the right of martial 
or military rule over citizens outside of the theater of actual war 
and admitting its existence in the war zone, just as do Judge Advo- 
cate General Leiber, Prof. Ballantine, and other writers on the sub- 
ject, as will be hereinafter shown. He is distinguishing the war 
power of government from the peace power. 

No doubt Patrick Henry and Thomas Jefferson Avere familiar with 
the British constitution and had carefulh^ studied Magna Charta 
and the petition of right. They were, too, apostles of liberty as 
well as constitutional lawyers. The former ceased to be governor 
of Virginia June 1, 1779, and the latter, on that day. became gov- 
ernor, and held the office until June 12, 1781. While he was governor 
and no doubt potential as to the course of legislation as in other re- 
spects, the general assembly, in May, 1780, passed an act containing 
the following provision : 

Be it enacted. That the governor be authorized, with advice of couucil. and 
he is hereby authorized and empowered, with such advice, to commit to close 
continement any person or persons whatsoever whom there may be just cause 
to suspect of disaffection to the independence of the United States, and of 
attachment to their enemies; or to cause .-uiy such person to be removed to such 
places of security as may best guard against the effects of their influence and 
arts to injure this community and benefit the common enemy. 

And he it further enacted. That in case of any insurrection within this Com- 
monwealtli. or the same shall be invaded by the enemy, either by land or water, 
that all and every person or persons within the same, who shall act as guides 
to, or spies for them, or who shall furnish the enemy with provisions or other 
necessaries, or who shall encourage desertion from the Army, or who shall 
dissuade or discourage the militia from opposing the enemy, or who shall give 
intelligence, aid, or comfort to the enemy, shall and they are here declared 
to be subject to the law martial as declared by Congress on the 20th day of 
September, 3776, in the fourth article of tlie sixth section and the eighteenth 
and nineteenth articles of the thirteenth section of the Continental Articles of 
War. And that for the trial of such offenders a court-martial, to consist of 
not fewer than 13 commissioned officers, one of whom shall be a field officer, 
shall be called by the county lieutenant or commanding oflicer of the militia 
in the county where such offense shall be committed, or in any other county of 
this Coumionwealth, where such offended mav be found. (10 Hen. Stat. 
at L., 310.) 

In May, 1781, while Jefferson was governor, an act was passed 
containing this provision : 

The governor, with advice of the council, is also hereby empowered to appre- 
hend or cause to be apprehended and committed to close confinement, any 
person or persons whatsoever whom they may have just cause to suspect of 
disaffection to the independence of the L'nited States or of attachment to their 
enemies, and such person or persons shall not be set at liberty b.v bail, main- 
prize, or habeas corpus. (10 Hen. Stat, at L., 414.) 

To say there can not be a trial by a military commission under 
martial rule is a contradiction of authorit}^ everywhere. 

Military commissions are courts organized under the international law of 
war for the trial of offenses committed during war by persons not in the land 
or naval foi'ces. In the United States their jurisdiction is contined to enemy 
territory occupied by an invading army, or at least to those sections of the 
country which are properly subject to martial law, and their authority ceases 
with the end of the war. (40 Cyc. 391.) By a practice dating from 1847 and 
renewed and firmly established during the Civil War military conunissions have 
become adopted as authorized tribunals in this country in time of war. They 
are simply criminal war courts, resorted to for the reason that the jurisdiction 
of courts-martial, creatures as they are of statute, is restricted by law and can 
not be extended to include certain classes of offenses which in war would go 
unpunished in the absence of a provisional forum for the trial of the offenders. 



44 IlSrSUERECTION AND MAETIAL LAW. 

Their authority is derived from the law of war, though in some cases their 
powers have been addded to by statute. Their competency has been recognized 
not only in acts of Congress, but in executive proclamations, in rulings of the 
courts, and in the opinions of Attorney Generals. During the Civil War they 
were employed in several thousand cases; more recently they were resorted 
to under the reconstruction act of 1S67 ; and still later one of these courts has 
been convened for the trial of Indians as offenders against the laws of war. 
(Digest of Opinions of the Judge Advocate General of the Armv bv Rowland, 
p. 1066.) 

The jurisdictioji of a military commission is derived primarily and mainly 
from the law of war, but special authority has in some cases been developed 
upon it by express legislation, as has already been noticed. Military commis- 
sions are authorized by the laws of war to exercise jurisdiction over two classes 
of offenses, committed, whether by civilians or military persons, either (1) in 
the enemy's country during its occupation by our army and while it remains 
under military government, or (2) in the locality not within the enemy's coun- 
try or necessarily within the theater of war, in which martial law has been 
established by competent authority. The classes of offenses are (1) violation 
of the laws of war. (2) Civil crimes which, because the civil aiithority is 
superseded by the military and the civil courts are closed or their functions 
suspended can not be taken cognizance of by the ordinary tribunal. In other 
words, the military commission, besides exercising under the laws of war its 
jurisdiction of oft'enses peculiar to war, may act also as a substitute for the 
time for the regular criminal adjudication of the State or district. (Dig. Opiu. 
Judge Adv. Gen., sec. 1680, McClure.) Of the ordinary crimes taken cognizance 
of under similar circumstances by these tribunals, the most frequent were 
homicides, and after these robbery, aggravated assault and battery, larceny, 
receiving stolen property, rape, arson, burglary, riot, breach of the peace, at- 
tempt to bribe public officers, embezzlement and misappropriation of public 
money or property, defrauding or attempting to defraud the United States. 
* * * Not unfrequently the crime, as charged and found, was a combina- 
tion of the two species of offenses above indicated. As in the case of the alleged 
killing, by shooting or unwarrantably harsh treatment, of officers or soldiers, 
after they had surrendered or while they were held in confinement as prisoners 
of war, of which offense persons were in several cases during the Civil War 
convicted by military commissions under the charge of " murder in violation of 
the laws of war." (Dig. Opin. Judge Adv. Gen. Howland, p. 1071. See also 
McClure's Dig. Judge Adv. Gen. Opin., sees. 1680, 1681, 1682, 1683, and 1684.) 

A military commission may sit and act in a community in which 
the civil courts are also acting. 

From the jurisdiction, however, of military commissions under the circum- 
stances above indicated, are properly excepted such offenses as are within the 
legal cognizance of the ordinary criminal courts, when, upon the establishing 
of military government or of the status of martial law, such courts have been, 
by express designation or in fact, left in full operation and possession of their 
usual powers. Thus, during the considerable periods of the war, pending which 
the District of Columbia was practically placed under a mild form of martial 
law, ordinary criminal offenses committed therein by civilians or military per- 
sons, of which there was not expressly vested by statute a jurisdiction in mili- 
tary courts concurrent with that of the civil tribunals, were in general allowed 
to be taken cognizance of by the latter, the same being at no time seriously 
interrupted in the exercise of their judicial functions. (McClure"s Dig. J. Adv. 
Gen. Opin.. sec. 1685.) Though a military commission is a military court, its 
jurisdiction is not confined to military persons. It extends to citizens as well 
as soldiers. That citizens may be bi'ought within the exercise of their power 
is revealed by the reason for their constitution. Courts-martial do not extend 
to citizens. As. in the exercise of military government, it often becomes neces- 
sary to rule, govern, and punish citizens and the powers of courts-martial 
established by law, not by the will of the commander, do not reach such cases, 
a military commission to deal with citizens in the war area is necessary. The 
general orders issued during the Civil War contained nearly 150 cases of women 
who were tried by military commissions. (Dig. J. Adv. Gen. Howland, p. 1067, 
note 6.) Of course they were not soldiers or in any way included in the land 
and naval forces of the United States or the militia. 

Although there is no express provision of the Constitution or acts of Con- 
gress authorizing military commissions, yet such commissions are tribunals now 



INSURKECTION AND MARTIAL LAW. 45 

as well known and reco.unizpd in the laws of the Thiited States as the court- 
martial. They have been repeatedly recog:nized by the executive, legislative, 
and judicial departnionts of tlie (loverunieut as tribunals for the trial of mili- 
tary ofleuses. But Avhile military commissions are tlius recognized, such a 
eonunission is not a court within the meaning of tlie fourteenth section of the 
judiciary act of 1780. uor is tlie authority exercised by it judicial in the sense in 
which judicial power is granted to the United States. A military commission, 
milike a court-martial, is exclusively a war court; that is, it may legally be 
convened a-nd assume jurisdiction only in time of war or of martial law or mili- 
tary government when tlie civil authority is suspended. Its jurisdiction is 
ordinarily limited to the tlieater of war or of military occupation. Its jurisdic- 
tion extends to persons connected with the army of the enemy, acting as spies 
or violating the rules of war: to the inhabitants of the enemy's country held 
by iin army of occupation; to the inhabitants of places under martial law; 
and to members of the Army of the United States, or civilians serving it in the 
field, who have committed offenses not within the jurisdiction of a court-martial. 
The otfenses cognizable by sucli a tribunal comiirise violations of the laws and 
usages of war. breaches of military orders or regulations not within the juris- 
diction of courts-martial, and criminal offenses cognizable by the ordinary 
criminal courts and wliicli would be tried by such courts if unobstructed in the 
exercise of their jurisdiction. (20 A. & E. Enc. L.. 660-661.) Military commis- 
sions are courts organized under the international law of war for the trial of 
ofCenses committed duiMng war by persons not in the land or naval forces. In 
the United States their jurisdiction is confined to enemy territory occupied by 
an invading army, or at least to those sections of the country which are properly 
bubject to martial law. (40 Cyc, 391.) 

Against such judicial construction and declarations of power, the 
speculations of lawyers and publicists, when in conflict with them, 
avail nothino-; but, as we endeavored to show, in the opinion in the 
former cases, there is no such conflict ; or, at least, very little. We 
i-epeat that Judge Advocate General Leiber and Prof. Ballantine, 
I'elied upon as such authority, in their two articles referred to in 
the decision in the Nance and Mays cases, clearly mark the distinc- 
tion between executive power in the area of military operation and 
in pacific territory. Of the case of Luther v. Borden, cited as 
authority in the Moyer case, as late as the year 1908, for power in 
the executive of a State to declare a state of war and thereby set 
aside judicial powers. Gen. Leiber said : 

When the legislature of Rhode Island made use of it in 1842 it was probably 
intended to have no more definite meaning than that the militia of the State 
was to use its military power to suppress the enemies of tlie State. It was an 
authorization to do what was done when the military officer broke into the 
house of one of the enemies of the State in order to arrest him. He was a 
pul)lic enemy against whom tlie military power liad been called out. It is 
evident that this is not the kind of martial law which we have been discus.sing. 

The purpose of his article Avas to define the powers of the execu- 
tive in the use of the military forces outside of the war zone and in 
territory considered loyal is contradistinguished from the territory 
of the public enemy. Prof. Ballantine, after having discussed the 
subject of such power. " In time of peace," and endeavored to define 
its limits, passes -to the second division of his article, executive power 
"• In time of war," and then proceeds as follows : 

The question remains whether we may have Federal martial law by virtue 
of the "war power" during invasion or insurrection in domestic territory. 
In war the enemy, be he a foreign one or a rebel to whom the status of 
belligerent has been given, has no legal rights which tha invader must re- 
spect except those which international law recognizes. When a civil con- 
test becomes a public war, all persons living within hostile limits become ipso 
facto enemies by their residence in enemy territory. An army in the enemy's 
country is thus' governed by the law of war, and officers and soldiers are re- 
sponsible only to their own government. 



46 INSUKEECTIOX AND MARTIAL LAW. 

Having said this lie immediately returned to the status of citizens 
in domestic territory outside of the rebellious area, saying: 

But iu domestic territory the status of the Army is entirely different. The 
civil rights of citizens are not suspended but remain the same as in peace, 
both in districts near to and remote from the theater of actual warfare. 

Observe that he does not say " remain the same in the theater 
of actual warfare." His next observation is that — 

The occurrence of hostilities does not A-ary the position of the citizen or 
deprive him of the protection of the Constitution, unless the army is in the 
position of a foreign invader and the country is ruled from without, acquiring 
the status of enemy territory. 

Then he sites Dow v. Johnson (100 U. S., 158). He is still talk- 
ing of the rights of citizens outside of the war zone, but Dow v. 
Johnson expressly decides that the rebellious territory is enemy terri- 
tory and subject to military rule. Obviously he cites this only as 
marking the difference between executive power in the theater of 
war in an instance of rebellion and executive power in the same 
country outside of the theater of war. His criticism of the admis- 
sion in Ex parte Milligan that, in time of war, there may be occasions 
when martial law can be properly applied, and of the decision of 
the English privy council in a recent case. Ex parte D. F. Marais, 
is not authority against the position here taken. In this he states 
what he thinks ought to be the law, but admits that it is not the law. 
Thus he says Ex parte Milligan declares that military authority 
of necessity supersedes the civil authority in foreign invasion or 
civil war on the theater of active military operations; and also 
that, in the late British-Boer War, the English privy council rendered 
a decision, holding the fact that some tribunals had been permitted 
to pursue their ordinary course was not conclusive that war was 
not raging. 

For his position, in so far as it seems to conflict with the admitted 
authority against it, he cites Mitchell v. Harmony (13 How., 115). 
That was an action for a wrong done by a military officer in the 
exercise of military power and authority in foreign territory, Mexico, 
in time of actual war. The action was brought long after the war 
had closed, and in the courts of the United States, and the decision 
asserts no more than that military officers are liable for wrongs done 
in the exercise of military power, and that they are governed and 
limited in respect to the acts they may do by the usages of war as 
understood in international law. The case is no authority for the 
position that the courts may supersede or arrest th? executive arm 
of the government while engaged in the conduct of a war of invasion 
or the suppression of an insurrection or rebellion, and here again it 
would be unjust to him to read his criticism of the Milligan case as 
the assertion of such a claim. He means no more than that on the 
theater of war power can not be exercised beyond that allowed by 
the usages of civilized warfare, and that after the return of the army 
from its foreign war, or the restoration of peace, an officer acting in 
violation thereof may be civilly or criminally liable. He neither says 
nor intimates, nor does his language imply, that the civil courts may 
give redress in any form or exercise any power in the enemy country, 
and Dow i\ Johnson, cited by him, expressly denies any such power 
in any court of any country. 



INSURRECTION AND MARTIAL LAW. 47 

Stating in his conclusion what the law is, not what he thinks it 
ought to be, he says : 

Wlieie the aruiy is not invading enemy territory of n recognized belligerent, 
but is in its own territory, the milit;iry authorities reniiiin liable to lie called 
to account, either in habeas corpus or any other judicial proceeding, for excess 
of authority toward citizens, no lUiitter whether it occurred in propinquity to the 
field of actual hostilities or while the courts were closed or nfter ;i proclama- 
tion of marial law. 

Propinquity means not in the field of actual hostilities, but nearness 
to it, or in the neighborhood of it, and his stated premise to the 
conclusion is : 

Where tlie army is not invading enemy territory of a recognized belligerent. 

In seeking his meaning we can not cut this out. To do so would 
be unjust to him. It would make him say what he neither says nor 
means. 

In support of the denial of the existence of Executive power, 
admitted and asserted by the foregoing authorities, numerous inap- 
plicable decisions are cited, some of which were analyzed and ex- 
plained in the opinion in the Nance and Mays cases. 

The Milligan case (4 Wall., 2) involved the rights of a man resid- 
ing and arrested in a State and county in which there was no war 
and had not been, and in which the courts were not only sitting but 
absolutely unobstructed in the exercise of their powers. In his argu- 
ment in that case Mr. Garfield marked the distinction between the 
sections, the war area and in the pacific domain. After having shown 
what provisions Congress had made for arrest, detention, and trial 
of disloyal people found in pacific territory, he said : 

But Congress did far more than to provide for a case like this. Throughout 
the 11 rebellious States it clothed the military department with supreme power 
and authority. State constitutions and laws, the decrees and edicts of courts, 
were all superseded by the hiws of war. 

If the Constitution of the United States forbade supremacy of 
the military over the civil power in every part of the national 
dominion, no matter what its condition, and thus effectually pre- 
cluded supremacy of military power as is contended, the Congress of 
the United States could not have done what Mr. Garfield said it did 
in the 11 rebellious States. Congress can no more override the Con- 
stitution than the President can. He admits that such Executive 
]DOwer was exercised in those States, and then, showing the State of 
Indiana to have been pacific territory, lying wholly outside of the 
theater of war, he denied the existence of any act of Congress author- 
izing a trial by a military commission of a citizen residing and ar- 
rested outside of the war area. Moreover, the entire Supreme Court, 
its dissenting justices as well as the others, declared that Congress 
had not authorized the application of martial law to a State like 
that of Indiana, nor attempted to do so. Chief Justice Chase, for the 
minority of the court, said : 

We have confined ourselves to the question of power. It was for Congress 
to determine the question of exi)ediency. And Congress did determine it. That 
body did not see fit to authorize trials by military commission in Indiana, but 
by the strongest implication prohibited them. 

Mr. Justice Davis, delivering the majority opinion, said : 

It is not pretended that the commission was a court ordained by Congress. 
* * * But it Is said the jurisdiction is complete under the laws and usages 



48 IISrSUERECTION AND MAKTIAL LAW. 

of war. * '= * They can never be applied to citizens in States which have 
upheld the authoritj^ of the Government, and where the courts are open and their 
process unobstructed. 

As Indiana was not in a state of actual war, nor under a military 
government by proclamation, authorized by Congress, it is clear that 
the Milligan case is no authority against the exercise of executive 
power in territory legally declared to be in a state of war. In re 
Kemp (16 Wis., 382) is governed by exactly the same principles. 
So is Ex parte Merryman (17 Fed Cas., ISTo. 9, 487). In re Hender- 
son (11 Fed. Cas., No. 6, 349) involves the question whether a mere 
contractor to furnish supplies to the Government for the use of the 
military service shall be tried by court-martial. It is not contended 
that any of the elements justifying substitution of the military for 
civil government were present. Hence the case has no possible appli- 
cation to the question here under consideration. The nature of the 
Egan case (5 Blatch., 319) appears from the statement found in the 
syllabus : 

Where a pei'son was tried by a military commission, in South Carolina, in 
November, 1S65, for a murder committed in September, 1865, and was convicted 
and sentenced to imprisonment for life in the penitentiary at Albany, N. Y., 
hostilities having terminated and the rebel army having surrendered to the 
authorities of the United States some seven months before the trial : Held, on 
a habeas corpus, that the prisoner was entitled to be discharged on the groimd 
that the conviction was illegal for want of jurisdiction in the tribunal. 

In the oioinion of the court there was not, at the time of the trial 
and conviction, a state of war in the community in which it occurred, 
Johnson v. Jones (24 111., 143), as regards the situation of the pris- 
oner, was like that of the Milligan case. He had been arrested and 
resided in pacific territory. In Johnson i;. Duncan (6 Am. Dec, 776) 
the validity of a proclamation of martial law was denied on the 
ground of lack of authority in the commanding officer to proclaim it, 
Congress not having conferred it. The principle of that case is the 
same as that of the Merryman case. Ela v. Smith (5 Gray, 121) did 
not arise in a state of war, nor under a proclamation thereof. The 
mayor of a city merely called upon the volunteer militia to assist him 
in executing the civil law. Whether, in case of a rebellion or insur- 
rection, the governor of a State may use the military power for its 
suppression and, in doing so, temporarily substitutes military law or 
rule for the civil law, is neither discussed nor adverted to in the 
opinion. 

It is true that in Tucker on Constitutions the exposition of this 
doctrine by the Supreme Court of the United States is criticized, but 
the author admits the interpretation is at variance with his views. 
Speaking of certain cases in which the court announced its conclusion, 
at iDage 639, he says : 

It is therefore pertinent to observe in respect to them, that they overthrew 
existing republican forms of government in every State of the Confederacy, and 
that government in Virginia which Congress and the President had recognized 
in the act dividing the State of Virginia which resulted in the admission of 
West Virginia to the Union ; and the government of Virginia thus recognized 
was put in possession of power at the city of Richmond after the war as the 
lawful government of Virginia. The reconstruction laws overthrew that gov- 
ernment which Congress itself had set up, and substituted a military govern- 
ment with the judicial power subject to its control. Military commissions were 
inaugurated for the trial of citizens in other States, and conventions were called 
under regulations prescribed for suffrage by Congress, and new constitutions 



INSURRECTION AND MARTIAL LAW. 49 

were adopted and new forms of government established. It is hardly a question 
that these laws, which overthrew the form of government established by the 
State, and refused to restore it as the legitimate form of government, and set 
up a military despotism in its place, were not a guaranty of a republican form 
of government to the States, but guaranteetl the overthrow of all republican 
forms of government and the adoption of a constitution against the will of its 
people and under the dictation of military power. 

This criticism necessarily admits all that is claimed in this opinion 
as to the construction of the Federal Constitution by the Supreme 
Court of the United States, namely, that, in belligerent territory, 
Congress had the powder, in effecting a restoration of the constitu- 
tional guaranties, to set up provisionally such a government as in 
their opinion would ultimately bring about that result. It is testi- 
mony to the existence of the law by one who challenges its soundness. 

Willoughby on the Constitution, at sections 726 and 727, in speak- 
ing of the use of the military under the control and direction of civil 
officers in the enforcement of a civil law, citing Ela r. Smith (5 
Gray, 121), denies that such use of the military forces constitutes 
martial rule or military government, and in this may be correct. At 
sections 728, 729, 730, 731, and 732 he discusses martial law and mili- 
tary government. Here he criticizes the opinion of Chief Justice 
Taney in Luther v. Borden, and adopts the views of Justice Wood- 
bury in a dissenting opinion. His criticism of the majority opinion 
necessarily admits conflict between his personal view and that of the 
court, in wdiich case, of course, the opinion of the court prevails and 
must be regarded as law. He also finds fault with the opinion of 
Mr. Justice Holmes in the case of Moyer v. Peabody, but here again 
the views of the court must prevail. Speaking of martial law in 
time of war, at section 732, he says : 

It has already been learned that in war the enemy, be he a foreign one or a 
rebel to whom the status of belligerent has been given, has no legal rights 
which those opposed to him must respect. When a civil contest becomes a 
public war all persons living within limits declared to be hostile become ipso 
facto enemies and subject to treatment as such. * * * Upon the actual 
scene of war there is no question but that for the time being the military 
authorities are supreme, and that these may do whatever may be necessary in 
order that the military opei-atlons which are being pursued may succeed. Here 
martial law becomes indistinguishable from military government. * * * 
The necessities being great and extraordinary, the executive and administra- 
tive — that is to say, the military — action that will be .iustified is correspond- 
ingly extensive. 

In section 733 he deals with the rights and pow ers of the executive 
and of citizens in time of war, but outside of the war area. Here he 
classes the Milligan ca.se as we do. Under this head he says : 

Under the stress of military exigency upon the actual theater of war such 
civil guaranties as the writ of habeas corpus, innnunity from search and seiz- 
ure, etc., may, of course, be suspended. As to this there is no question. There 
is, however, a serious question whether when war exists these rights may, by 
legislative act or executive lu-oclamation, be suspended in regions more or less 
remote from active hostilities. This question was raised and carefully con- 
sidered in the famous Milligan case, in which the Supreme Court was called 
upon to pass upon the authority of a military connnission during the Civil 
War to try and sentence, upon the charge of conspiracy against the TTnited 
States Government, one ililligan, who was not a resident of one of the rebel- 
lious States, nor a prisoner of war, nor ever in the military or naval service of 
the United States, but was at the time of his arrest a citizen of the State of 
Indiana, in which State no hostile military operations were then being con- 
ducted. 

S. Doc. 43, 63-1 4 



50 INSUEKECTIOlSr AND MAKTIAL LAW. 

As the Government of the United States is one of enumerated 
powers, the tenth amendment to the Constitution, declaring that — 

The powers not delegated to the United States, nor prohibited by it to the 
States, are reserved to the States, respectively, or to the people — 

it was perhaps more difficult to find authority in the President of the 
United States and in the Congress thereof to suppress a rebellion 
and, in the exercise there the power, to establish military government 
and administer martial law, than it is to find the same power in the 
executive of a State, to which there is reserved all power not dele- 
gated to the National Government nor prohibited to the States. The 
Federal Constitution makes the President Commander in Chief of 
the Army and Navy and of the militia of the States, when called 
into service, but he is not authorized by express terms to use the Army 
and Navy or militia, at his own volition, to suppress an insurrec- 
tion or repel an invasion. That power is conferred upon Congress, 
but in the most general terms. By clause 15 of section 8 of Article I, 
Congress is authorized — 

To provide for calling forth the militia to execute the laws of the Union, 
suppress insurrections, or repel invasions. 

By clause 11 of the same section it is authorized — 

To declare war, grant letters of marque and reprisal, and make rules for 
captures on land and water. 

In conferring these powers upon Congress the imposition of re- 
straint and limitation upon the exercise thereof was carefully avoided, 
to the end that the power might be exercised efficiently. It is appar- 
ent that, in defending its life against a foreign or domestic foe, the 
Government must be left much in the situation of an individual in 
the exercise of the right of self-defense. On this subject Alexander 
Hamilton said : 

The circumstances that endanger the siafety of nations are infinite, and for 
this reason no constitutional shackles can wisely be imposed on the power to 
which the care of it is committed. * * * This is one of those truths which, 
to a correct and unprejudiced mind, carries its own evidence along with it and 
may be obscured, but can not be made plainer by argument or reasoning. The 
means ought to be proportioned to the end, the persons fi'om whose agency the 
attainment of any end is expected ought to possess the means by which it is to 
be attained. (Federalist, No. 23.) 

Mr. Madison expressed the same idea in the following terms : 

It is vain to impose constitutional barriers to the impulse of self-preservation. 
It is worse than in vain, because it plants in the Constitution itself necessary 
usurpations of power. (Id., No. 41.) 

Likewise John Adams, speaking long after the formation of the 
Constitution, said: 

All the powers incident to war are by necessary implication conferred upon 
the Government of the United States. There are, then, in the authority of 
Congress and of the Executive two classes of powers altogether different in 
their nature and often incompatible with each other — the war power and the 
peace power. The peace power is limited by regulations and restricted by pro- 
visions prescribed within the Constitution itself. The war power is limited 
only by the laws and usages of nations. This power is tremendous ; it is 
strictly constitutional, but it breaks down every barrier so anxiously erected 
for the protection of liberty, of property, and of life. 

Thus, in the spirit of the framers of the Constitution, the Supreme 
Court of the United States spoke long years after those who had 
formed it had passed away. They died before the anticipated ex- 



INSURRECTION AND MARTIAL LAW. 51 

igency arose, hut when it came the administrators of government, 
including the judicial hranch thereof, had no difficulty in finding in 
the Constitution the war power in all its might and strength, not- 
withstanding the express guaranties of life, liberty, and property, 
trial by jury, and others insisted upon now as precluding the exist- 
ence of such implied power. It included suspension and overthrow 
of the civil power in the war zone, courts or no courts, ignored the 
constitutional guaranties, subordinated private right to the exigencies 
of the occasion, justified the arrest and imprisonment of citizens, and 
substituted military connnissions for constitutional civil courts, with 
power to try, convict, and punish citizens for offenses of all kinds. 

Since the Federal Constitution has not inhibited military govern- 
ment on tlie theater of warfare in which the military power of the 
Federal Government is engaged, such government being, by necessary 
implication, contemplated and authorized by the Constitution itself, 
under such circumstances no reason is perceived, nor has any been 
advanced in the argument of- this case or any other, why military 
government in a State, justifiable upon the same ground of necessity 
and by implication authorized by the State constitution, should be 
regaicled as a violation of the Federal Constitution. On the contrary, 
the Federal Supreme Court has itself on more than one occasion de- 
clared such State action not to be a violation of the National Consti- 
tution, nor of the guaranties of due process of law, trial by jury, and 
the equal protection of the laws. Such is the effect of the decision in 
Moyer v. Peabody (212 U. S., 78), saying: 

Public danger warrants the substitution of exec-utive process for judicial 
process. 

The substitution referred to and held good in that case was by 
the executive of a State under a State constitution. In that case — 
Luther r. Borden (7 How., 1) — in which Chief Justice Taney asserted 
the power of a State to declare war in the suppression of an insurrec- 
tion and for the establishment and maintenance of its authority, was 
cited with approval. Holding the prisoner not entitled to his dis- 
charge on a writ of habeas corpus, the Supreme Court of Colorado 
said: 

In reaching this conclusion we are not unmindful of the argument that a 
great power is reco.gnized as being lodged with the chief executive, which might 
Ibe unlawfully exercised. That such power may be abused is no good reason 
why it should be denied. The question simply is, Does it exist? If so, then the 
govei'uor can not be deprived of its exercise. The prime idea of government Is 
that power must be lodged somewhere for the protection of the Commonwealth. 
For this ])urpose laws are enacted, and the authority to execute theai must 
exist, for tliey are of no effect unless they are enforced. Neither is power of 
any avail unless it is exerciseiL Appeals to a possible abuse of power are often 
made in public debate. They are addressed to popular fears and prejudices, and 
often given weight in the public mind to which they are not entitle(^l. Every 
government necessarily includes a grant of power lodged somewhere. It would 
be imbecile without it^ (In re Moyer, 35 Colo., 159. 169.) 

This declaration of power by a State court was sustained by the 
Supreme Court of the United States. In Luther v. Borden (7 How., 
1) Chief Justice Taney said : 

And un(piestionably a State may use its military power to put down an 
armed insurrection too strong to be controlled by the civil authority. The 
power is essential to the preservation of order and free institutions, and is as 
necessary to the States of this Union as to any other Government. The State 
itself must determine what degree of force the crises demands. 



52 iisrsuKRECTioisr and martial law. 

He then said, in substance, that if the government of Rhode 
Island had made a declaration of martial law there was " no ground 
upon which " the " court could question its authority." Proceeding, 
he further observed : 

It was a state of war, and the established government resorted to the rights 
and usages of war to maintain itself and to overcome the unlawful opposition. 

This proposition the court approved and applied in Moyer v. 
Peabody, cited. Argument against so plain a declaration is neces- 
sarily futile. 

In the main State constitutions are framed on the plan of that of 
the Federal Government, and all of them contain in some form the 
same power, right of self-preservation, as that preserved by the Fed- 
eral Constitution. By it the power is vested in Congress for execu- 
tion by the President. In most of the State constitutions it is 
vested in the governor for some reason, possibly because the exer- 
cise thereof in a State is considered a matter of less consequence 
than by the Federal Government, for the reason that no despotic 
or arbitrary government can be permanently established in any 
State, since the Federal Constitution guarantees to every State a 
republican form of government, and any attempt by any governor 
to establish himself as a dictator in a State would be promptly 
thwarted by the exercise of the powers of the Federal Government. 
Hence, there is less danger in entrusting such power to a State 
governor than there would be in entrusting it to a President. Other 
reason may be found in a desire to avoid the expense incident to the 
convening of the legislature to confer upon the governor the power 
to suppress an insurrection or repel an invasion. Whatever the 
reason for it, this difference exists, and the power vested in the 
governor of this State by the terms of the constitution is the same 
regarding the maintenance of a State government as that vested in 
Congress by the Federal Constitution regarding the maintenance of 
the National Government. Indeed, it is vested by the use of the 
same general terms. In the Nance and Mays cases we said an ex- 
press grant of power to use the military forces to suppress insurrec- 
tion or repel invasion was a grant of power to suppress insurrection 
in the manner in which that has usually been done in other States, 
countries, and times. So says the Federal Supreme Court of such 
terms used in the constitution of Colorado. In Moyer v. Peabody 
Mr. Justice Holmes said : 

That means that he shall make the ordinary use of the soldiers to that end. 

Though harsh and obviously at variance with the spirit of our in- 
stitutions, under normal conditions, this principle finds its counter- 
part in a general principle of the law, applicable to lesser matters 
than the preservation of the government or the maintenance of the 
laws of a State. It is, indeed, unfortunate that men's lives should 
be sacrificed and inconveniences and hardships imposed, in the exer- 
cise of such power upon noncombatants, but this is not the only in- 
stance in which the common law recognizes the same principle. If a 
citizen is assailed by another with felonious intent, he may defend 
himself to the extent of taking the life of the assailant and the act is 
justifiable. Any citizen is authorized by the common law to take 
upon himself, if the occasion justifies it, the vindication of the law 
and take the life of another to prevent him from committing a felony. 



INSURRECTION AND MARTIAL LAW. 53 

Here a jirivate citizen is authorized to exercise power the same in 
character and kind, to save another individual or his property, as 
that vested in the governor of the State. As the law admittedly 
authorizes any citizen, no matter what his character or station in life 
or the degree of his intelligence, to take life to prevent the commis- 
sion of a felony, is it inconsistent to say the governor of a State, as 
the chief conservator of the peace, selected as such for his superior 
wisdom, character, and intelligence, may exercise the same kind of 
poAver for the accomplishment of a higher purpose? Officers of the 
law, such as constables and sherifl's, in the execution of process for ar- 
rest and imprisonment, may oppose resistance, using such force as is 
necessary, even to the taking of life. (Whar. Crim. L. (11th ed.), 
sec. 528, p. 718: Murphy on Sheriffs, sees. 1160 and 1129; McClain 
on Crim. L.. sec. 298.) So, in pursuing a felon or preventing an 
escape, an officer may kill if necessary. (Whar. Crim. L., sees. 532, 
533.) If officers of the law. when engaged in the preservation of the 
peace, find it necessary to take life, such homicide is justifiable. (Id., 
sec. 534.) 

In all these instances, citizens are deprived of life without a trial 
b3^ jury, notwithstanding the constitutional inhibition of depriva- 
tion of life without trial by jury. Likewise there are many instances 
in which a man may be deprived of his property without a jnry 
trial, notwithstanding a similar constitutional inhibition. Property 
of a citizen may be taken out of his possession by the drastic remedy 
of attachment. Though he may have a trial by jury as to the ex- 
istence of the debt for which the attachment is issuecl, and as to the 
existence of the grounds thereof, the property is first taken out of his 
possession. He is deprived of the use of it. and this amounts to a 
deprivation of property, without a trial by jury. So there are 
numerous instances in which jurisdiction of causes involving title to 
property is vested in the courts of equity, not bound to give a trial 
by jury at all. Throughout all this broad country men are arrested 
and committed to prison by justices, police magistrates, and other 
authorities, daily and by thousands, on accusations of all sorts of 
offenses, and thus in a sense deprived of their liberties without t}ie 
intervention of juries, notwithstanding the constitutional inhibition 
of deprivation of liberty without a trial by jury. There is no excep- 
tion of these cases from the letter of the guaranty in terms or by 
name, yet evervbody recognizes it. 

These illustrations show conclusively that the constitutional guar- 
anties are to be read and applied in the light of their purposes, which 
falls far short of the letter. They prove beyond question that there 
are exceptions from the strict letter of those guaranties. As these 
undoubtedly exist, may not others also? Their existence absolutely 
and emphatically condemns the theory of strict adherence to the 
letter of these constitutional provisions. As a citizen may take into 
his own hands the whole power of the law, as its champion and 
defender, and take life, to prevent the consummation of a single 
threatened felony as well as to save his own, or merely to prevent 
great bodily harm, as a matter of self-defense, and a petty officer, in 
effecting an arrest or pursuing a felon, may take life, all single 
instances and matters of comparatively small moment, notwithstand- 
ing the literal guaranties of the constitution from which they are 
not expressly excepted, does not the assertion of power in the execu- 



54 IISrSUEEECTION AND MAKTIAL LAW. 

tire of a State, its chief conservator of the peace, to use military 
power as a substitute for the civil power, when the whole fabric of 
government of the State is endangered, the laws trampled under 
foot, all the constitutional guaranties violated and set aside, the 
lives and property of thousands in jeopardy, and the civil authori- 
ties wholly unable to cope with or resist the assault, stand upon the 
same principle of necessity ? The constitution does not set it all out 
in detail, but it uses terms broad enough to include it, unless re- 
strained by the clauses relied upon as imposing such restraint. 
Neither does the constitution preserve in terms the right of self- 
defense or the right to kill in prevention of felonies or arrest of a 
felon or prevention of his escape, but it uses terms broad enough 
to include these rights. In both cases the application of the settled 
rules of construction make the general terms so used include the 
means necessary to the accomplishment of the organic purpose, in 
restraint of the letter of other classes having different purposes. 
This construction vests tremendous power in the governor, and its 
exercise may produce frightful consequences, but, as in the other 
cases mentioned, it is the necessary means of prevention of still worse 
results. Thus government is not perfect. It can not be in the nature 
of things. 

The clause inhibiting suspension of the writ of habeas corpus is 
relied upon as an element differentiating our constitution from that 
of the Federal Government and those of some other States. With 
this phase of the case we dealt at some length in the opinion in the 
Nance and Mays cases. In addition to what was said there, we ob- 
serve that the guaranty of the privilege of the writ of habeas corpus 
adds nothing to the guaranties of due process of law, trial by jury, 
eognizance of causes by civil courts, and supremacy of the civil over 
the military power. This writ does not confer rights. It only 
vindicates such rights as are given by law. It is a remedy, not 
a law creating or declaring rights. The courts are always open to 
applications for the writ and always grant it upon proper applica- 
tion, but it does not follow that every one who applies for it or makes 
the necessary affidavit is entitled to be discharged. It may be the 
duty of the governor and every military officer of the State to 
recognize the writ and make return thereto, but that is not conclu- 
sive of the question whether the applicant shall be discharged or 
accorded such other relief as he claims. If on the return it appears 
that under some power vested by the constitution or a statute the 
governor or such other officer as has the applicant under arrest 
or imprisoned has power and authority to detain or imprison tile 
applicant he can not be discharged. In seeking the vindication of 
constitutional rights on a writ of habeas corpus the applicant is 
bound by such power and authority as are vested in the person by 
whom he is detained. He can not be discharged unless illegally re- 
strained of his liberty, and he is not so restrained if the law author- 
izes or justifies his detention, whether the officer be a constable, a 
police officer, the military forces, or the governor of the State. In 
other words, the writ adds nothing whatever to the guaranties or 
rights vested by law, nor does the guaranty of the privilege thereof 
in any way cut down or limit the rights and powers vested in officers 
by law, constitutional or statutory, either in express terms or by 
implication. 



INS-UREECTION AND MARTIAL LAW. 55 

But it is said there can -be no war in a State. It suffices to say, 
in response to this, that Luther v. Borden and Moyer v. Peabody 
expressly decide that the Constitution of the United States does not 
inhibit the declaration by a State of a state of Avar within its own 
borders by proper authority. State courts other than this have 
asserted the same proposition. (In re Moyer, 35 Colo., 159; Com- 
monwealth V. Shortall, 206 Pa., 165.) In the latter case the court 
said: 

The effect of martial law is to put into operation the powers and methods 
vested iu the commanding officer by military law. So far as his powers for 
the preservation of order and security of life and proi)erty are concerned there 
is no limit bnt the necessities and exigency of the situation. And in this re- 
spect there is no difference between a public war and domestic insurrection. 
What has been called the paramount law of self-defense, common to all 
countries, has established the rule that whatever force is necessary is also 
valid. 

Ex parte Moore (64 N. C., 802) also declares a governor of a State 
may proclaim a sta'te of war and recognize the status of belligerency. 
The opinion in that case is consistent with those of the Supreme 
Court of the United States except in one respect. The court fell 
into the fallacy above noted respecting the clause forbidding sus- 
pension of the privilege of the writ of habeas corpus and said it 
denied power in the governor to detain prisoners and required him 
to turn them over immediately to the civil authorities for trial. 
Plainly there is nothing in the law securing the privilege of the writ 
of habeas corpus that confers any such right. It must be found, if 
at all, in some provision or principle. 

As to what constitutes an insurrection or state of war or rebellion 
the authorities are fairly clear. In Pennsylvania and Colorado the 
occasions of the declaration, adverted to in Commonwealth v. Shor- 
tall and Moyer v. Peabody, were very similar to the one calling for 
the proclamation here involved. A similar situation, growing out 
of a different cause, was the basis of the proclamation in Xorth Caro- 
lina. These authorities show that it need not take the form of an 
attempt to set up a new government by name. 

The rule of the coumion law is that when the regular course of justice is 
interrupted by revolt, rebellion, or insurrection so that the courts of .iustice 
can not be kejit open civil war exists, and the hostilities may be prosecuted on 
the same footing as if those opposing the government were foreign enemies 
invading the land. The converse is also regularly true, so that when the courts 
of a government are open it is ordinarily a time of i)eace. But though the 
courts be open, if they are so obstructed aud overawed that the laws can not 
be peaceably enforced, there might ])erhaps be cases in which this converse 
application of tlu^ rule w;iuld not be admitted. (18 Fed. Cas., case No. 10T5.5a.) 
A state of actual war may exist without any formal declaration of it by either 
party, and this is true of both civil and foreign war. A civil war exists and 
may be jn-osecuted on the same footing as if thoi-e opposing the government were 
foreign invaders whenever the regular course of justice is interrupted by revolt, 
rebellion, or insurrection so that the courts can not be kept open. 

These definitions are given in prize cases and the political status 
ascertained and determined as the basis of settlement of property and 
commercial rights. I hey are not conclusive as to the state of affairs 
when viewed from other standpoints. The question we have here is 
an entirely different one — insurrection or rebellion in the sense of 
justification of a declaration of a state of war by competent authority. 
War is not necessarily a rising of the people in an armed effort to 



66 INSUKEECTION AND MAKTIAL LAW. 

establish a rival goveinment. As to what constitutes a levying of 
war under a statute against treason, a very similar one to the question 
we have here. Sir Matthew Hale says (JPleas of the Crown, Vol. I, 
p. 149) : 

What shall be said a levying of war is partly a question of fact, for it is not 
every unlawful or riotous assembly of many persons to do an unlawful act, 
the de facto they commit the act they intend, that makes a levying of war, for 
then every riot would be treason, and all the acts against riotous and unlawful 
assemblies, as 13 H. 4 cap. 7. 2 H. cap. 8. 8 H. cap. 14 and many more had been 
vain and needless ; but it must be such an assembly as carries with it speciem 
belli, as if they ride or march vexillis explicatis, or if they be formed into com- 
panies, or furnished with military officers, or if they are armed with military 
weapons, as swords, guns, bills, halberds, pikes, and are so circumstanced that 
it may be reasonably concluded they are in a posture of war, which circum- 
stances are so various that it is hard to define them all particularly. 

On page 152 he says the levying of war against the King is of two 
kinds, express and interpretative. Of the latter he said: 

Constructive or interpretative levying of war is not so much against the 
King's person as against his government; if luen assemble together more 
guerrino to kill one of His Majesty's privy council, this hath been ruled to be 
levying of war against the King. (P. 16 Car. 1. Cro. 583.) Bensted's case be- 
fore cited, and accordingly was the resolution of the House of Lords 17 R. 2. 
Talbot's case above mentioned. So, in the case mentioned by my Lord Coke, 
in the time of H. 8 Co. P. C, p. 10, levying war against the statute of laborers 
and to enhance servants' wages was a levying of war against the King ; and 
although levying of war to demolish some particular inclosures is not a levy- 
ing of war against the King (Co. P. C, p. 9), yet, if it be to alter religion estab- 
lished by law, or to go from town to town generally to cast down inclosures, or 
to deliver generally out of prison persons lawfully imprisoned, this hath been 
held to be levying of war against the King within this act, and the conspiring 
to levy war for those purposes treason within that clause of the act of 13 Eliz. 
cap. 1., as was resolved in Barton's case and Grant's case, above mentioned, and 
the like resolution was in the case of the apprentices that assembled more 
guerrino to pull down bawdyhouses. 

That the condition of the courts is not the sole criterion seems to be 
very well settled, when the question is justification of a declaration of 
war. In Elphinstone v. Bedreechund (1 Knapp, 316) the statement 
of the case shows some of the civil courts were open when the trans- 
action out of which the case grew occurred. The syllabus says : 

The circumstances, that at the time of the seizure the city where it was made 
had been for some months previously in the undisturbed possession of the pro- 
visional government and that courts of justice under the authority of that gov- 
ernment were sitting in it for the administration of justice, do not alter the 
character of the transaction. 

In Marais v. General Officer, decided in 1902, the English Privy 
Council, presided over by the lord chancellor of England, reasserted 
this doctrine, saying: 

The fact that for some purposes some tribunals have been permitted to pursue 
their ordinary course in a district in which martial law has been proclaimed is 
not conclusive that war is not raging. 

Though civil courts are open, as was shown in that case, their juris- 
diction is denied when it essays to interfere with executive action. 
On this point the lord chancellor said : 

The truth is that no doubt has ever existed that where war actually prevails 
the ordinary courts have no jurisdiction over the action of the military author- 
ities. 



INSUKKECTION AND MAKTIAL LAW. 57 

Speaking- of this decision, in an article reproduced in 18 Law 
Quarterly KevieAV, 1902, Sir Frederick Pollock, an eminent English 
authority, said : 

The judgment iuvolves the further position that neither an application for 
summary release from extraordinary arrest nor an action for anything done as 
an extraordinary act of necessity will be entertained by the ordinary courts 
during the continuance of a state of war in the .ini'isdiction, when the court is 
satisfied that a responsible officer acting in good faith is prepared to justify the 
act complained of. I do not know that this is seriously objected to. 

In the folloAving terms he goes beyond the doctrine of the Milligan 
and Marais cases and the position taken here : 

There may be a state of war at any place where aid and comfort can be 
effectually given to the enemy, having regard to the modern conditions of war- 
fare and means of communication. 

The declaration in Mover v. Peabody, cited, averred that the courts 
of Colorado were open and could have tried the petitioner at the time 
of his detention by the governor, and the United States Supreme 
Court held the circumstances insufficient to make a good declaration 
against the governor for false imprisonment. In Dow v. Johnson 
(100 U. S., 158) there was involved the judgment of a civil court, 
open and running in Xew Orleans, by virtue of the permission of 
the military commander. Nevertheless its judgment was declared 
void by the United States Supreme Court for want of jurisdiction. 
Of the civil courts, Mr. Justice Fields said in that case : 

They are considered as continuing, imless suspended or superseded by the 
occupying belligerents. 

This necessarily implies power to suspend them or supersede them. 
Hence it folloAvs that, although for some purpose th^y are open, in 
some respects their service efficient, they are clearly not inconsistent 
with martial rule or a declaration of war. In Moyer v. Peabody, 
cited, the court said : 

Public danger warrants the substitution of executive process for judicial 
process. * * * As no one would deny that there was immunity for order- 
ing a company to fire upon a mob in insurrection, and that a State law authoriz- 
ing the governor to deprive citizens of life under such circumstances was con- 
sistent with the fourteenth amendment, we are of opinion that the same is 
true of a law authorizing by implication what was done in this case. Martial 
law is the temporary government and control by military authority of territory 
in which by reason of war or public danger the civil government is inadequate 
to the preservation of order and the enforcement of law. (40 Cyc, .387.) 

What is inadequacy of the civil power, exercised by courts? Does 
it suffice for the purposes of government that the courts may fairly 
try civil cases or some classes of criminal cases, while the guns of civil 
conflict roar almost within their hearing, and blood flows and lives 
are in process of extinguishment, and those engaged in it can not be, 
or, at least are not, restrained b^^ the ordinary criminal processes? 
Is this adequate government by the civil power? Under such cir- 
cumstances, are not some of the guaranties of the Constitution, which 
all officers are sworn to enforce, set aside in point of fact as effectually 
as if the courts were not sitting at all and could not sit? Must the ex- 
ecutive arm remain at rest, because all guaranties are not so set aside, 
as to all people or in all places ? Reason and authority answer in the 
negative. 



58 INSUERECTIOISr AND MAETIAL LAW. 

If insurgents or rebels must be turned over to the civil authorities 
as fast as seized, Avhen the courts can not or will not try them, though 
sitting and performing other functions, the courts become, by reason 
of their existence, agencies or instrumentalities of resistance of the 
exercise of necessary executive power. Under the rights of continu- 
ance and bail given by the civil law or indulged, by courts affected 
with sympathy, timidity, or fear, those arrested can be released to 
reengage in the conflict, and the courts themselves become passive or 
active, though incidental, factors in the maintenance of forcible re- 
sistance of law and order. Thus the construction insisted upon runs 
to a palpable absurdity as well as contravention of principles of sound 
public polic3^ A process of analysis leading to such results is con- 
demned by rules of interpretation and construction recognized every- 
where. (Hasson v. Chester, 67 W. Va., 2T8 ; In re Moyer, 35 Colo., 
159.) 

On this question authority is meager for the obvious reason that it 
is a political one, not subject to judicial review, the courts everywhere 
holding a declaration of a state of Avar by competent authority to be 
conclusive of the fact. Hence the reported cases show no instance of 
court interference with executive action as to that question. 

AVhether there was justification for the declaration of a state of war 
in this instance is not an open question. By all authority the dec- 
laration of a state of insurgency or war by competent authority is 
conclusive upon the court. (Luther v. Borden, cited; Moyer v. Pea- 
body, cited; In re Moyer, 35 Colo., 159.) If,, however, it were an 
open question we would be unable to say in view of the circumstances 
detailed in the returns there was not sufficient ground for the dec- 
laration. In the territory covered by the proclamation armed forces 
have been contendng with one another for nearly a year. Many per- 
sons have lost their lives, and property has been destroyed, railroad 
trains have been interfered with, execution of the law by the civil 
officers has been resisted and prevented by force of arms, and much 
worse results have been threatened. Though the courts of Kanawha 
County have been sitting outside of the district, nobody^ has been 
brought to trial, arrested, or indicted for any of these offenses. If 
the courts could have acted, they have not done so. What efforts 
have been made to enforce the laws and punish offenders are not fully 
disclosed, but the fact is nothino- has been done. AVliy this state of 
affairs has been permitted to exist by those who ought to have sup- 
pressed it if it was within their power to do so is rather a collateral 
question. The interest of the State and of the general public im- 
periously demand termination of it, no matter what the cause. 

The declaration of a state of war was in law and fact a recognition 
or establishment of belligerency and made the inhabitants of the 
military district technically enemies of the State, even though an- 
other executive might not have regarded the facts sufficient to war- 
rant the action. Errors in decision do not destroy or establish lack 
of jurisdiction. This is a principle imiversally recognized. 

Though Moyer v. Peabocly, cited, Luther v. Borden, cited, and 
(Commonwealth v. Shortall, cited, do not assert power or authority 
in the executive of a State under an executive declaration of military 
government in a portion thereof to try citizens by a military com- 
mission, the general principles asserted by all of these decisions fairly 
include it. In no way do they distinguish the exercise of this power 



INSURRECTIOIf AND MARTIAL LAW. 59 

'.11 a State from that of similar power in tlie Federal Government 
executed by the President under authority conferred by Congress. 
In the Sh-ortall case the court said: 

What has been called the paranionnt law of self-defense common to all coun- 
ti'ies has established the rule that whatever force is necessary is also lawful. 
While the military are in active service in the suppression of disorder and 
violence their rights and obligations as soldiers must be judged by the standard 
of actual war. 

In Luther r. Borden the court said : 

And unquestionably a State may use its military powers to put down an 
armed insurrection too strong to be controlled by the ci\'il authorities. The 
]>ower is essiMitinl to the preservation of order and free institutions and is as 
necessary to the States of this Union as to any other Government. 

That case denies the right of a State to set up a permanent military 
government, but it admits the right of a State to exercise militar}'' 
power for self-preservation on exactly the same principle as that on 
■which the same power has been shown to exist in the 5y"ational Gov- 
ernment. 

Only one of the cases, Mover v. Peabody, involves right of deten- 
tion of a citizen under arrest and denial of his claim of right to im- 
mediate .surrender for trial by the civil courts, and the Supreme Court 
of the I'^nited States justified his detention upon the same principles 
upon which military government and administration of martial law", 
as applied to citizens, is justified in the National Government. All 
of these cases assert the principle and none of them qualify or limit 
it. Hence none of them is authority against power in the executive 
of a State, in the suppression of an insurrection or rebellion, to cause 
persons to be tried by a military commission for oifenses conniiitted 
within the territory declared to be in a state of war, and we have 
found no authority of that kind except the Moore case (in fii X. C, 
802), in which the court, after having decided that the governor was 
bound to make immediate surrender of prisoners to the civil tribunals, 
admitted its inability to enforce the declaration and denied that its 
Avrits had any virtue or effect inside the military district. 

As a result of these principles, view^s, and conclusions, we have two 
areas or sections in the State, by virtue of a declaration of a state of 
war in (he district, in which the powers of government and the rights 
of citizens differ most radically. The tremendous power of the gov- 
ernor in the military district does not extend beyond the limits 
thereof. Nevertheless, he is the governor of the peaceable territory 
of the State and has such powers as are normally vested in him by the 
constitution and the law^s, and any additional authority the legisla- 
ture may have conferred upon him in pacific territory in the event of 
such exigencies, not violative of constitutional provisions. In the 
language of John Adams, the State has a peace power and a war 
power, both of which are now active. We construe the returns of the 
respondents as asserting, for the purposes of this case, the power of 
detention of the petitioners, not a right to try them by a military 
commission. Having shown the existence of a state of war in the 
area covered by the governor's proclamation, and the steps taken to 
suppress the insurrection and lawlessness in that territory, the re- 
turns say the petitioners have been largely instrumental in causing 
and encouraging the lawlessness, riot, and insurrection, and that their 
detention is, in the judgment of the executive, necessary in order to 
effectually suppress the same. 



60 INSUEEECTIOlSr AND MARTIAL LAW. 

This sufficiently charges them with having willfully given aid, 
support, and information to the insurgents, the enemy, in a time of 
war, insurrection, and public danger, and section 6 of chapter 14 of 
the code confers upon the governor power to apprehend and im- 
prison all such persons. Such acts may be done either inside or out- 
side of the military district. Nothing in the terms of the statute 
limits the exercise of this executive power of apprehension and 
imprisonment to persons within the military district, and it is obvious 
that persons outside of such district may do as much or more than 
persons inside of it to defeat executive action looking to the sup- 
pression of the insurrection or rebellion. Hence there is no reason for 
such a limitation. On the contrary, there is good reason against it, 
wherefore we must say the legislature intended no such a limitation, 
and the statute contemplates such arrests and imprisonment of per- 
sons committing these acts outside of the military district. 

We have just seen that this power of detention, as exercised by 
the governor of the State of Colorado, was sustained by the Supreme 
Court of the United States in Moyer v. Peabody. Moreover, we see 
no reason for saying it violates in any respect any of the constitu- 
tional guaranties. It is statutory authority in the governor, and if 
not in violation of the constitution it amounts to due process of law 
within the meaning of the fourteenth amendment to the Constitution 
of the United States. It contemplates imprisonment without a trial 
by jury, but not by judgment of conviction of a crime. The exercise 
of this power involves no change or status from citizens to convicts. 
It is therefore not a deprivation of liberty without a trial by jury 
within the meaning of the constitutional guaranties. Such appre- 
hension and imprisonment are the same in principle as those of per- 
sons accused of crime. On all sorts of charges, from assault and bat- 
tery to first degree murder, citizens are daily arrested and impris- 
oned to await examination, indictment, and trial. There may be 
imprisonment without a jury trial for contempt of court. (State v. 
Gibson, 33 W. Va.. 97; Cooley Cons. Lim., 453.) Persons offending 
against city by-laws may be imprisoned without a trial by jury if the 
offense is not made a crime. (McGear v. Woodruff, 35 N. J. L., 213.) 
It was not the purpose of the framers of the Constitution to inter- 
fere with the course of the common law by the incorporation of this 
guaranty, and b}^ that law persons guilty of petty offenses and con- 
tempt of court and accused of crime could alwaj^s be imprisoned with- 
out a jury trial. (McGear v. Woodruff, cited; In re Rolfs, 30 Kans., 
758.) 

As this statute is a law conferring power upon the governor, action 
under Avhich constitutes due process of law provided the statute itself 
is constitutional, a question about which we have no doubt, and, as 
the returns show the existence of a state of war, an insurrection, and 
certainly at time of public danger, each of which seems to have been 
made a condition precedent to the exercise of the power, the deten- 
tion of these petitioners, although arrested outside of the military 
district, is, in our ojoinion, entirely valid and legal. 

Hence discharges were refused, and they were remanded to the 
custody of the military authorities acting under the control and direc- 
tion of the governor. 

Petitioners remanded. 



INSURRECTION AND MARTIAL LAW, 61 

Robinson, Judge, diFsenting: 

May citizens accused of civil offenses be tried, sentenced, and 
imprisoned or executed by military commissions at the will of the 
governor of this State notwithstanding the civil courts having juris- 
diction of the offense are open? This is the question made by the 
record in these cases. It is none other. Nor can it be reduced to any 
other. The question is not that of the power of the governor to use 
the militia to execute the laws, suppress insurrection, and repel 
invasion. That the governor has constitutional and statutory power 
so to use the militia, and thereby to arrest persons as far as it is 
reasonably necessary, no one will deny. But because the governor 
has this power must judicial construction run random and thrust 
upon the citizens of this State military courts for the trial of civil 
offenses, in the very face of the direct inhibitions against such ]:)ro- 
cedure contained in our Constitution, and regardless of all constitu- 
tional guaranties? 

Not a case cited in the majority opinion other than the former 
decision of the majority in the Nance and Mays cases, not an 
authority relied on by the majority in these present cases or those 
former ones, sustains the holding that citizens may be tried and con- 
demned for civil offenses by military commissions at the unrestrained 
will of the executive when the courts having jurisdiction of those 
offenses are open and operative. 

But whatever might be the law elsewhere our own constitution 
should control. The doctrine promulgated b}^ the majority and that 
constitution can not stand together. They are totally at variance. 
By the most direct and explicit provisions the people of this State, 
when they adopted the constitution, supposed they had forever pre- 
cluded insistence upon such arguments as the majority opinion puts 
forth. They meant to guard against such misconception of constitu- 
tional liberty as that into which the majority of the court has fallen. 
The people declared against the suspension of the constitution at 
any time, war or no war, on any plea whatsoever. Yet the majority 
of this court holds that it may be suspended whenever the governor 
by proclamation, right or wrong, sees fit to suspend it. The people 
ordained that the privilege of the writ of habeas corpus should never 
under any circumstances be suspended. Yet the holding of the 
majority is to the effect that the governor may make that sacred writ 
totally unavailing. The people further ordained that no citizen 
not in the military service should ever be called to answer before a 
military court for a civil offense. Yet the majority holds that any 
citizen may be subject to trial and condemnation before a military 
commission whenever the governor sees fit to displace the civil courts 
by a proclamation to that effect. 

How can the majority decision in these cases and the former ones 
be upheld in the face of the constitution of this State? Hear some 
of its plain provisions again, and then say if the constitution may be 
departed from and a citizen not a soldier subjected to trial and 
punishment before a military commission for a civil offense: 

The provisions of the Constitution of the Ignited States and of tliis State are 
opei'ative alike in a period of war as in time of peace, and any departure there- 
from or violation tliereof under the plea of necessity, or any other plea, is sub- 
versive of good government and tends to anarchy and despotism. (Art. 1, 
sec. 3.) 



62 INSUKEECTION AND MAKTIAL LAW. 

The privilege of tlie writ of habeas corpus shall not be suspended. No person 
shall be held to answer for treason, felony, or other crime not cognizable by 
a justice unless on presentment or indictment of a grand jury. (Art. 3, sec. 4.) 

No person shall be deprived of life, liberty, or property, without due process 
of law, and the judgment of his peers. (Art. 3, sec. 10.) 

The military shall be subordinate to the civil power ; and no citizen, unless 
engaged in the military service of the State, shall be tried or punished by any 
military court, for any offense that is cognizable by the ciA'il courts of this State. 
(Art. 3, sec. 12.) 

Trials of crimes, and of misdemeanors, unless herein otherwise provided, shall 
be by a jury of 12 men, public, without unreasonable delay, and in the county 
where the alleged offense was committed, unless upon petition of the accused, 
and for good cause shown, it is removed to some other county. In all such trials 
the accused shall be fairly and plainly informed of the character and cause of 
the accusation, and be confronted with the witnesses against him. and shall 
have the assistance of counsel, and a reasonable time to prepare for his defense; 
and there shall be awarded to him compulsory process for obtaining witnesses in 
his favor. (Art. 3, sec. 14.) 

The courts of this State shall be open, and every person, for an injury done 
to him. in his person, property or reputation, shall have remedy by due course 
of law; and justice shall be administered without sale, denial, or delay. (Art. 
3, sec. 17.) 

When we observe these provisions of our State constitution or 
look at that instrument as a whole, we see how clearly applicable to it 
are the w^ords applied to the Federal Constitution by a preeminent 
authorit}^ : 

There is nothing in that instrument to indicate that the guaranties which it 
affords for life or property are to cease on the occurrence of hostilities. A con- 
trary design is manifested unmistakably with the utmost clearness. (Hare's 
American Constitutional Law, 963.) 

But. says the majority, it Avas implied and presumed that these 
constitutional provisions were not ahvays to be followed. (See syl. 
2, in the cases of Nance and Mays, Y7 S. E., 243.) What legal 
doctrine is this? ^^^len before has it been declared that express 
provisions of a constitution may be set aside by mere implication 
and presumption? From what does the implication and presump- 
tion arise? The majority says, from the provision which estab- 
lishes a militia and gives the governor power to call out tlie same 
to execute the laws, "suppress insurrection, and repel invasion, and 
from the inherent right of sovereignty to preserve itself. In other 
words, because the Constitution provides for the existence of a militia, 
it means that the militia shall have power to supplant the civil law. 
Yet the Constitution has said plainly that the militia should not 
supplant the civil law — should not try citizens for civil offenses and 
deprive them of the precaution of an indictment before a grand jury 
and the right to the judgment of their peers. Can the mere provi- 
sion for a militia annihilate the other and more explicit provision? 
Does the one repeal the other? By every known rule of construc- 
tion thev must be made to stand together. True, a militia is pro- 
vided for : but unmistakable restriction is placed on the use of that 
militia. Is it not within the power of a constitution to limit and 
restrict ? Are not such instruments supposed to construct, mark out, 
and limit ? Must the express restrictions as to the use of the militia 
give Avay merelv because of the provision which brings the militia 
into existence? ^ But, further, the majority says that there is a pre- 
sumption that in the promulgation and adoption of the Constitution 
the people did not mean to abolish a generally recognized incident 
of sovereignty, the power of self-preservation of the State by its 



INSURRECTION AND MARTIAL LAW. 63 

military" forces in cases of invasion, insurrection, and riot. If there 
ever existed a sjenerally recognized incident of sovereignty whereby 
a State could deprive its own citizens of presentment and trial by 
jury for civil offenses and subject them to trial for such offenses 
before military courts, our people certainly did mean to abolish that 
incident, for they used explicit words sufficient to abolish the same. 
It can not be presumed that the people meant to retain military trial 
of its citizens for civil offenses, when they explicitly say that no such 
trial shall ever be had. No ; the founders had good reasons to abolish 
it and to leave no room for implication or presumption to the con- 
trary. The argument of the majority goes to this, the founders 
could not do away with that implication and presumption unless they 
abolished the militia itself. Having retained the militia, the majority 
would say, the makers of the Constitution retained trial of citizens 
by military courts regardless of the specific and direct words of those 
rnakers to the contrary. Such argument leads to palpable absurclity. 
In consonance with the provisions of our constitution, the legisla- 
ture has specifically provided for the militia to be used only in aid 
of the civil authorities when such a state of affairs exists as that dis- 
closed by the record in these cases. (Code 190G, ch. 18, sees. 55-64.) 
Indeed throughout the whole military code the relation of the militia 
to the civil law is always apparent. Its existence and use for the en- 
forcement of the civil law, not its own law, is clearly recognized. 
Nowhere is its independence of the civil law even hinted at. The 
militia is a citizen soldiery. It is not an imperial army. Nor is it 
at all in keeping with American traditions even to think of making 
it such, or giving it dominancy at any time to supplant the ordinary 
laws of the land. Why was not the true relation of the militia recog- 
nized for the enforcement of law in Cabin Creek district? What 
necessity existed for using the militia differently from the way the 
legislature has said it shall be used when such conditions exist as those 
disclosed in these cases? Why disregard the plain direction of the 
statute Avhich says it shall be used in aid of the civil authorities? It 
is no answer to say that the legal method is insufficient. The law- 
makers deemed it sufficient, and provided no other method. Can the 
governor renounce the wisdom of the lawmakers and assert his will 
through the militia against our own citizens as though they were 
foreign enemies? 

Truly it would seem that the use of the militia in aid of the civil 
authorities is all sufficient for the quelling of any unlawful disturb- 
ance in a single magisterial district of this great State and for the 
bringing of all offenders to trial before the constitutional courts. But 
it is said that the governor's proclamation establishing other means 
can not be reviewed" by the courts. Is the governor thus imnuine from 
the law ? Can he, because of an assault and battery between two per- 
sons or the murder of one person by another, issue a proclamation of 
martial law and through the use of the militia order the offender to 
be imprisoned or hanged and the courts have no power in the prem- 
ises? If he is to be the absolute judge of the necessity for establishing 
martial law in one case, why not in any case, though no necessity 
exists ? That the illegal acts 'of the governor may be reviewed by the 
courts as well as those of any other officer certainly needs no argu- 
ment. This court has declared a veto of the governor to be illegal 
and void. Acts of the legislature are set aside by the courts as illegal. 



64 INSUKRECTION AND MAETIAL LAW. 

Remember, the writ of habeas corpus is always available in this State. 
Om- constitution plainly says it shall be. It makes no exception 
even for invasion and rebellion, as most constitutions do. By that 
writ any unlawful imprisoning of a citizen may be reviewed. By it 
a governor's proclamation, if not warranted in law and in fact, must 
give way. That great writ of freedom can never rightly be pro- 
claimed away in this State. Executive or even legislative acts can 
not suspend it. 

My position in these cases, as in the Nance and Mays cases, is 
rested squarely on our own constitution and laws. Why go elsewhere 
for authority ? But it is not wanting elsewhere. It is prevalent and 
pronounced in opposition to the majority holding. 

In connection with what may be said by me in these cases my 
former dissenting opinion in the similar cases of Nance and Mays 
(77 S. E., 247) should be read as applicable, explanatory, and addi- 
tional. 

The argument that to preserve the life of the State the governor 
must be given such extreme and dominant power as the majority 
has accorded to him may be answered by asking one question: Is 
this great State in its death throes because of rioting and unlawful 
acts in a single magisterial district? If the State has become so 
impotent in its sovereign powers under the civil law as to be in 
danger of its existence because of mere private dissensions and dis- 
turbances in a small isolated district, it is time for patriotic citizens 
to arise. The State can not be preserved by a suspension of consti- 
tutional rights. Nothing will kill it quicker. The words of the 
Supreme Court of the United States on this line are most significant : 

It is insisted that the safety of the country in time of war demands that this 
broad claim for martial law shall be sustained. If this were trne, it could 
well be said that a country, preserved at the sacrifice of the cardinal principles 
of liberty, is not worth the cost of preservation. (Ex parte Milligan, 4 Wall., 
126.) 

Nor does the suggestion that the civil courts, officers, and juries 
are inefficient sound well. That is the same excuse that is invariably 
given for suspending the Constitution and laws when a lynching 
takes place. Why were not the civil authorities aided by the militia, 
as the law directs? If this had been done, would they have been 
inefficient ? It is mere assumption to say that they would have been. 
Their functions were supplanted. The militia, under proclamation 
of the governor, set up a court of its own, and denied all criminal 
jurisdiction of the civil courts and officers, even as to civil offenses 
committed before the proclamation. Say the civil authorities are 
inefficient. Do two wrongs ever make a right? 

It may be claimed that the majority opinion only authorizes arrest 
and detention until the disturbances are suppressed. Why the ex- 
tended argument and citation seeking to justify trials, sentences, and 
punishment by military commissions? What does the approval and 
reaffirmance of the holding in the Nance and Mays cases mean? The 
majority refused to discharge Nance and Mays from the penitentiary, 
thereby uj^holding their military sentences to that penal institution. 
Read again the syllabus to the opinion in those cases. There it is 
directly held that the militia may not only arrest and detain, but by 
military commission may try citizens and sentence them to the peni- 
tentiary for civil offenses amounting under the civil law onfy to 
misdemeanors. Moreover, read syllabus 2 to the majority opinion 



INSURRECTION AND MARTIAL LAW. 65 

lierein. It licAds that the civil power as to offenses is excluded by the 
inilitarv proclamation and that the usages of nations prevails over 
our own citizens. In fact, it holds that our citizens are to be dealt 
with as alien enemies. That the issue in these cases involved the 
question of trial, sentence, and punishment by military commission 
in the place of the civil courts can not be gainsaid when the petitions, 
writs, returns, and briefs are examined. That petitioners sought not 
discharge from custody, but freedom from military trial by an order 
of this court remanding them to the civil courts for trial their plead- 
ings show. That the military authorities were claiming absolute 
Jurisdiction to try. sentence, and punish petitioners and were deny- 
ing all jurisdiction of the civil courts in the premises was charged by 
petitioners and not denied by the respondents. That charges and 
specifications accusing petitioners of civil offenses were pending be- 
fore a military commission is shown by the respondents themselves 
in their returns. That immediately after the decision in these cases 
petitioners were put on trial before a military commission and by it 
tried for the civil offenses charged is common notoriety from the 
public press. That the military authorities claim the right to act 
absolutely independent of the civil authorities in the so-called mili- 
tary district and to try, condemn, sentence, and imprison in the State 
penitentiary for a specific term any citizen for a civil offense, whether 
connected with the disturbance Jbetween the mine owners and the 
miners or not so connected, is a fact pregnant from every part of the 
records in these cases and the former cases of Nance and Mays, par- 
ticularly from the proclamations and military orders of the governor. 
That the military authorities have been and still are exercising such 
iinomalous jurisdiction that they even deny that the sheriff' of the 
countv may enter the district which they have marked out and there 
serve the process of the civil courts is a matter of State history. 

The issue was clear. It was this: Should the petitioners be re- 
manded for trial to the military court claiming exclusive and final 
jurisdiction of the civil offenses charged against them and thus be 
put in jeopardy of conviction and confinement in the State peniten- 
tiary without presentment and trial by jury ? This court should have 
promptly condemned the unwarranted procedure to which the major- 
ity subjected petitioners. It should have given notice to all that this 
State is a land of constitutional courts, not one of imperial military 
courts. 

Petitioners were arrested in the city of Charleston on a warrant of 
a justice of the peace, a civil court, charging them with civil offenses, 
that of conspiring to inflict bodily injury on persons whose names 
were unknown, and otlier offenses. They were taken before the jus- 
tice, within sight of the courthouse where the civil courts of the 
county were open and in the exercise of their powers. Instead of 
giving the accused preliminary examination, and upon the finding of 
probable cause holding them to answer the grand jury, the justice 
directed the special constables having them in charge, by indorsement 
on the warrant, to deliver them to the military authorities in the 
so-called military district. The exception of petitioners to such 
unknown procedure did not avail. They were so delivered and were 
about to be put on trial before a military commission for the same 
offenses charged before the civil court when the writs of habeas 

S. Doc. 43, 63-1 5 



66 INSURRECTION AND MARTIAL LAW. 

corpus were awarded them. Though petitioners were arrested and 
brought before a civil court — the justice of the peace — that court in 
absolute disregard of their rights and the law governing it sent them 
to the military authorities in a distant part of the county. This 
illegal procedure alone entitled petitioners to be remanded to the 
civil courts. Yet it simply illustrates the extreme to which disregard 
of constitutional and legal procedure has run. Instead of recogniz- 
ing the true order of the statute whereby a militia is to aid the civil 
authorities, the law is reversed, and the civil authorities are used to 
aid the military power. Verily indeed has the military power been 
made absolute, independent, and dominant in West Virginia. 

Why resort is made to sections 6, 7, 8, and 9 of chapter 14 of the 
code one familiar with the record in these cases can not conceive. No 
reliance was placed on these sections by the military authorities. 
They were not content with the limited powers mentioned therein, 
for these sections do not provide for military trial and sentence. 
Nothing short of a court of their own and the sending of citizens to 
the penitentiary for specific terms without trial by jury will satisfy 
the military authorities. Besides, these sections provide only for the 
arrest of certain persons on a warrant or order issued by the gover- 
nor. They were not invoked by the governor. He issued no warrant 
or order for the arrest of petitioners. If reliance had been made on 
these sections, the absence of the basic warrant or order of the gov- 
ernor would have entitled petitioners to discharge. Is not this 
elementary law? Again, these sections of the statute apply only to 
enemies of the State, to those who give aid, support, or information 
to the State's enemies, to those who conspire or combine together 
"■ to aid or support any hostile action against the United States or 
this State." These sections are made for public war, not for the mere 
private conflict as to which the State is not a party, but is only the 
great conservator of the peace through the civil law. An examina- 
tion into the origin and history of these enactments, to say nothing 
of their direct words, will disclose that they were made for times 
when enemies seek to overthrow the government. (See Ordinances 
of the Wheeling Convention of 1861, pp. 7 and 8 ; code, 1868, ch. 14, 
sees. 5-9; acts, 1882, ch. 144, sees. 5-9.) 

A clash between mine owners and miners can not be considered 
public war, and the participants dealt with as enemies of the State. 
True it is that in war the enemy, whether a foreign one or a rebel 
to whom the status of belligerent has been given, has no legal rights 
which those opposed to him must respect. But have either the 
mine owners and their guards on the one side, or the miners on the 
other, assumed the status of belligerency against the State? Be- 
cause of warfare between themselves and violations of the law in 
relation thereto, has neither side any constitutional rights which the 
State is bound to respect? Nothing in the record justifies the con- 
clusion that either the mine owners and their guards on the one hand, 
or the miners on the other, have lost their allegiance to the State by 
the unfortunate clash between them or by any other act. Neither 
faction has made war against the State. Each time the militia has 
been sent to the district, all has remained quiet. Chief Justice 
Marshall early defined what it is to make Avar : 

To constitute a levying of war, there must be an assemblage of persons for 
the purpose of effecting by force a treasonable purpose. (Ex parte Bollman, 
4 Cranch, 75.) 



INSURRECTION AND MARTIAL LAW. 67 

Nothing e\en reminding one of treasonable purpose is involved 
in these cases. Yet the majority opinion deals with the citizens of the 
district as rebels. It deals with a part of Kanawha County as enemy 
country. In this it can not be sustained by reason of authority. 
Cabin Creek district has not seceded ! The residents of that district 
are citizens of the State under its civil protection, though they may 
have violated the law. Because one violates the law, does he lose 
his legal rights? The guiltiest man, if he is not an enemy in public 
warfare directly against the State, is entitled to all rights as a 
citizen. 

War, in public- law, Iins. as is well known, a definite meaning. It means a 
contest between public enemies termed belligerents, and to the status thus 
create<l. definite lejial rijihts and responsibilities are attached by international 
and constitutional law. War is thus sharply distinguished from a mere insur- 
rection or resistance to civil authority. ( Willoughby on the Constitution, 
sec. 730.) 

The failure in the majority opinion to observe the sharp distinction 
between public war and civil disorder, between enmity against the 
State and individual enmity between citizens of the State, between 
rebels and mere violators of the law. between belligerent territory 
and territory retaining allegiance, accounts for the misapplication 
of the decisions, legislative enactments, and quotations relied on 
therein. An examination of those decisions, enactments, and qiuita- 
tions with this distinction in view will show how inapplicable they 
are. They relate to public war and to public enemies. We are not 
dealing with public war or with public enemies. With the exception 
of the Moyer cases and the Shortall cases, to which reference will be 
made later, the cases relied on for the majority relate to various 
questions growing out of public war. That which may be allowable 
by the usages of nations in a public war can not be applied as against 
citizens of a State engaged in civil disorder. (See Hare's American 
Constitutional Law, 922.) 

The populace being loyal and the territory domestic, private rights of person 
a]id property still persist, though subject, as in all other cases, to the exercise 
of the police powers of the State. (Willoughby on the Constitution, sec. 732.) 

Xor can the governor, by proclamation or otherAvise. make that 
public war which in fact is not such. He can not install martial law 
in a time of peace, when every civil court of the State is open, under 
the guise of a proclamation of public war which in fact does not 
exist. 

The existence of martial law does not in any way depend upon the proclama- 
tion of martial law. (Dicey on the Law of the Constitution, .545.) Indeed, it 
may be said that a State of the Union has not the constitutional power to create, 
by statute or otherwise, a ,state of war, or by legislative act or executive ]>rocla- 
niation to suspend, even for the time being, all civil jurisdiction. (Willoughby 
on the Constitution, sec. 730.) 

Military commissions have existed in public wars — in conquered 
enemv countries. But no military commission for the trial of citi- 
zens, usurping all criminal jurisdiction of the courts, has ever before 
been sanctioned or recognized as to a State militia in the quelling of 
domestic disorder. Indeed, the majority cites no adjudicated case in 
Avhich such trial by military commission has been upheld even as to 
}Hiblic war. In public wars' military commissions have been installed 
in conquered foreign territory, or conquered rebellious territory, out 



68 INSURRECTION AND MARTIAL LAW. 

of the actual necessity arising from the fact that the courts were 
closed or were not in sympathy with the obligations of the conquer- 
ing country to society. They properly pertain nowhere else. Never 
before has any State of the Union disowned its civil courts and 
ordained that military commissions shall take their place. No such 
thing has been done anywhere since the declaration of the petition of 
right. Yet with us it has been done in the face of the fact that 
nothing whatever prevented the taking of offenders, arrested by the 
militia in the quelling of disorder, before our civil courts and there 
subjecting them to trial in constitutional form. The way to the 
courthouse was unobstructed. If the militia could arrest offenders 
und secure witnesses for its own assumed court, it could do so as 
readily for the legally organized courts. Nothing so readily estab- 
lishes respect for the law as respect for it by those in power. The 
reverse is equally true. 

The effort in the majority opinion to sustain military commissions 
by asserting that the opinion in the Milligan case and the writings of 
Lieber, Ballantine, and others distinguished between pacific territory 
Slid the theater of actual war, can not avail with anyone who fully 
reads the opinion and writings referred to. Neither the Milligan 
opinion nor the writings of Lieber, Ballantine, and others uphold 
arbitrary military trial on any such distinction, or at all. They do 
distinguish between territory in rebellion seeking to overthrow the 
Government and territory that has not lost its allegiance — between 
enemies engaged in public war and citizens violating the law. Kead 
them. For instance, Ballantine says : 

What may be done on the theater of actual military operations when our 
Armies are advancing, retreating, or operating within our own territory de- 
pends upon military necessity for the public defense, and is to be judged by 
the circumstances and exigencies of the particular case, which may be reviewed 
by the courts, irrespective of military proclamations. Citizens can not be ar- 
rested, deported, imprisoned, or put to death by arbitrary military authority 
when war is raging any more than during a state of peace, and the fact that the 
courts are closed or that a proclamation of martial law has been made will not 
justify a resort to the arbitrary unregulated exercise of militaiy power. 

The kind of martial law which the majority of this court upholds 
is unknown in England and the United States'. All the great writers 
on constitutional law so assert. 

Mr. Dicey, the renowned English author, after quoting the French 
law, which' allows constitutional guaranties to be suspended by proc- 
lamation, says: 

We may reasonably, however, conjecture that the terms of the law give but 
a faint conception of the real condition of affairs when, in consequence of tumult 
or insurrection, Paris or some other part of France is declared in a state of 
siege, and, to use a significant expression known to §ome continental countries, 
'' the constitutional guaranties are suspended." We shall hardly go far wrong 
if we assume that, during this suspension of ordinary law, any man whatever is 
liable to arrest, imprisonment, or execution at the will of a military tribunal 
consisting of a few officers who are excited by the passions natural to civil war. 
* * * Now, this kind of martial law is in England utterly unknown to the 
constitution. Soldiers may suppress a riot as they may resist an invasion, they 
may fight rebels just as they may fight foreign enemies, but they have no right 
under the law to inflict pimishment for riot or rebellion. (Law of the Con- 
stitution, 288.) 

The leading American authority of the present day says : 

' There is, then, strictly speaking, no such thing in American law as a declara- 
tion of martial law whereby military is substituted for civil law. So-called 



INSURRECTION AND MARTIAL LAW, 69 

declarations of martial law are, indeed, often made, but the legal effect of these 
(goes no further than to warn citizens thnt the military powers have been called 
upon by the executive to assist him in the maintenance of law and order, and 
that, while the emergency lasts, they must, upon pain of arrest and punishment, 
not commit any acts that will in any way render more difficult the restoration 
of order and the enforcement of law. During the time that the military forces 
are employed for the enforcement of the law, that is to say, when so-called mar- 
tial law is in force, no new powers are given to the executive, no extension of 
arbitrary authority is recognized, no civil rights of the citizen are suspended. 
The relations of the citizen to his State are unchanged. (Willoughby on the 
Constitution, sec. 727.) 

The majority opinion repeatedly appeals to In re Moyer (35 Colo., 
p. 159) and its sequel, Moyer v. Peabody (212 U. S., p. 78). These 
decisions involve no question of trial by military commission. They 
go no further than to justify an arrest made by military authorities 
in the suppressing of civil disorder. They plainly negative any 
recognition of military trial and punishment for an offense in con- 
nection with the civil disorder. In the instance to which they relate 
the governor of Colorado claimed no right to try and punish by 
military rule. He was not an advocate of military commissions. 
His return to the writ of habeas corpus expressly avers that Moyer 
was to be given over to the civil authorities for trial. Here are its 
words : 

That it is his purpose and intention to release and discharge petitioner from 
military arrest as soon as the same can be safely done with reference to the 
suppressing of the existing state of insurrection in the county, and then sur- 
render him to the civil authorities to be dealt with in the ordinary course of 
justice after such insurrection is suppressed. 

And in disposing of the case the chief justice of Colorado lends 
no recognition to military trial for offenses connected with the civil 
disorder. Here is what the chief justice, speaking of Moyer, says 
in the opinion : 

He is not tried by any military court or denied the right of trial by jury, 
neither is he punished for violation of the law nor held without due process 
of law. His arrest and detention in such circumstances are merely to prevent 
him from taking part or aiding in a continuation of the conditions which the 
governor, in the discharge of his official duties and in the exercise of the 
authority conferred by law, is endeavoring to suppress. When this end is 
reached he could no longer be restrained of his liberty by the military, but must 
be. just as respondents have indicated in their return to the writ, turned over 
to the usual civil authorities of the county, to be dealt with in the ordinary 
course of justice and tried for such offense against the law as he may have 
committed. 

In the review of this same arrest in the suit of Moyer v. Peabody, 
supra, Mr. Justice Holmes says: 

Such arrests are not necessarily for punishment, but are by way of precau- 
tion to prevent the exercise of hostile power. 

He does say that — 

public danger warrants the substitution of executive process for judicial 
process. 

But his remarks must be interpreted in the light of the case before 
him. He could not have meant executive process to try and punish 
for a civil offense, for that question was not involved in the case. He 
meant executive process to arrest, not executive process to try and pun- 
ish. The former was embraced in the case ; the latter was not. Be- 
sides, we have seen that he plainly said that such arrests were not for 
punishment, but to prevent hostile power. Xo ; Colorado had not gone 



ii) INSURRECTION AND MARTIAL LAW. 

to the extent of disowning and snpplanting her civil courts by military 
courts. The governor of that State disclaimed any such purpose, but 
directly answered that he Avas only acting in aid of the civil authori- 
ties. But with us the contention of the governor in every case has been 
that his military court may make convicts out of citizens. And each 
decision of the majority of this court, viewing the same from the 
issues involved, to say nothing of the written opinions, has held that 
the governor may thus cast upon citizens the stigma of having been 
confined in the penitentiary, though under the civil law the offense 
involved may have been only a petty misdemeanor. If the majority 
meant to go no further than these Moyer cases go, why has it not 
long ago said to the military authorities: You may arrest and detain 
for the purpose of preventing hostile power, but you can not by 
military court send offenders to the penitentiary, as the governor has 
ordered. If it meant to go no further, why has it refused to dis- 
charge Nance and Mays from penitentiary sentences? If it meant to 
go no further, why has it plainly remanded the present petitioners to 
military trial and the hazard of punishment in the penitentiary 
thereb}^ ? 

Whether such length of detention as that involved in the Moyer 
cases may prevail in West Virginia, where our constitution has no 
exception ever allowing a suspension of the privilege of the writ of 
habeas corpus, need not now be discussed. 

Plainly the case of Commonwealth v. Shortall (206 Pa. St., 165) 
is no authority to sustain military courts. It involves no question of 
trial by a military court. It no more than defines the view of the 
Supreme Court, of Pennsylvania as to what military acts in the 
quelling of civil disorder may be excused on the ground of necessity. 
There a soldier on duty in a disturbed district of the State, acting 
under military orders for the suppression of the disturbances, shot 
@ne who did not obey his command to halt. It was held that the cir- 
cumstances justified the act. ^Vhat has this to do with the supplant- 
ing of civil trial by military trial ? At any rate, see the adverse criti- 
cism of that decision in 65 L. R. A., 207. 

Moreover, it may be confidently asserted that none of the adjudi- 
cated cases cited by the majority, except those criticized or sought to 
be distinguished by it, have any more relations or come any nearer 
to the question of military trial than do the Moyer cases and the 
Shortall case. They are wide of the mark. On the other hand, such 
military trial as that fostered by the majority has received the con- 
demnation of many courts — the clarion denouncement of the highest 
tribunal in this land : 

The Constitntiou of the United States is a law for rulers and people, equally 
In war and in peace, and covers with the shield of its protection all classes of 
men, at all times, and under all circumstances. No doctrine involving more 
pernicious consequences was ever invented by the wit of man than that any of 
its provisions can be suspended during any of the great exigencies of govern- 
ment. (Ex parte Milligan. 4 Wall., 120.) 

In addition to the references made in my dissenting opinion in the 
Nance and Mays cases, supra, the following, by no means all, will be 
found enlightening : 

Willoughby on the Constitution (ch. 52) ; Dicey on the Law of the 
Constitution" (280-290, 538-555); Hare's American Constitutional 
Law (lecture 44) ; Story on the Constitution (5th ed., sec. 1342, and 



INSURRECTION AND MARTIAL LAW. 71 

note thereto) ; Annals of Congress (0th Cong., '2d sess., pp. 402^24,' 
o0'2, et seq.) ; Johnson r. Duncan {?> Martin. 530; B Anier. Dec, <)T3) ; 
Ex parte Merrvnian (Fed. Cas., 9487) : In re Egan (5 Blatch., 319) ; 
Ex parte Benedict (Fed. Cas., 1292) ; Ex parte Henderson (Fed. Cas., 
6349) ; Johnson r. Jones (44 IlL, 142) ; In re Kemp (16 Wis., 382) : 
Griffin r. Wilcox (21 Ind., 370) ; Jones v. SeAvard (40 Barb., 563) ; 
Congressional Globe (38th Cong., 2d sess., pp. 1421-1423) ; Franks v. 
Smith (142 Ky., 232) ; 1 Cooley's Blackstone (413) ; 6 Great Ameri- 
can Lawyers (233-254); Edinburgh Eeview (January, 1902, pp. 
79-105).' 

Is it not a spectacle for the notice of a people who rest their liberties 
on our form of constitutional government that in one of the States of 
the Fnion a section thereof is given over to an independent military 
rule Avhich admits no power of the civil courts to enter and which 
claims cognizance as against all found therein of every imaginable 
accusation, from mere words spoken to perjury, rape, or murder? 
Does the peaceful mountain farmer residing therein realize that he 
is subject not to the civil law but to the will of a military com- 
mander who may hear no excuse as to any accusation against him? 
Do citizens of this Republic passing through that district on one 
of the great transcontinental lines of railway realize that for a time 
they are subject absolutely to the Avill of one man? It is no excuse 
to say that the supreme military authority will not be exerted against 
such. It is bad enough to say that a majority of this court has held 
that such authority exists. The majority has held that martial law — 
the law and usage of public war — can and does exist in that district. 
Then that martial law — 

overrides and snjjpresses all existing civil hnvs, civil officers, and civil anthori- 
ties hy the arbitrary exercise of military power; and every citizen or subject — 
in other words, the entire iwpulation of the country within the confines of its 
power — is subject to the mere will or caprice of the commander. He holds the 
lives, liberty, and property of all in the palm of his hand. Martial law is reg\\- 
lated by no known or established system or code of laws, as it is over and above 
all of them. The commander is the legislator, judge, and executioner. ( In re 
Egan. 5 Blatch.. 321.) 

The persistency with which a military rule heretofore unknown has 
been sanctioned has demanded this second protest on my part. Un- 
fortunate indeed is the generation that forgetteth the memories of its 
fathers. 

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